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HEARING TO REVIEW THE LABOR NEEDS OF 

AMERICAN AGRICULTURE

HEARING

BEFORE THE

COMMITTEE ON AGRICULTURE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

THURSDAY, OCTOBER 4, 2007

Serial No. 110–30

(

Printed for the use of the Committee on Agriculture 

agriculture.house.gov 

COMMITTEE ON AGRICULTURE 

COLLIN C. PETERSON, Minnesota, Chairman 

TIM HOLDEN, Pennsylvania, 

Vice Chairman 

MIKE MCINTYRE, North Carolina 

BOB ETHERIDGE, North Carolina 

LEONARD L. BOSWELL, Iowa 

JOE BACA, California 

DENNIS A. CARDOZA, California 

DAVID SCOTT, Georgia 

JIM MARSHALL, Georgia 

STEPHANIE HERSETH SANDLIN, South 

Dakota 

HENRY CUELLAR, Texas 

JIM COSTA, California 

JOHN T. SALAZAR, Colorado 

BRAD ELLSWORTH, Indiana 

NANCY E. BOYDA, Kansas 

ZACHARY T. SPACE, Ohio 

TIMOTHY J. WALZ, Minnesota 

KIRSTEN E. GILLIBRAND, New York 

STEVE KAGEN, Wisconsin 

EARL POMEROY, North Dakota 

LINCOLN DAVIS, Tennessee 

JOHN BARROW, Georgia 

NICK LAMPSON, Texas 

JOE DONNELLY, Indiana 

TIM MAHONEY, Florida 

BOB GOODLATTE, Virginia, Ranking 

Minority Member 

TERRY EVERETT, Alabama 

FRANK D. LUCAS, Oklahoma 

JERRY MORAN, Kansas 

ROBIN HAYES, North Carolina 

TIMOTHY V. JOHNSON, Illinois 

SAM GRAVES, Missouri 

JO BONNER, Alabama 

MIKE ROGERS, Alabama 

STEVE KING, Iowa 

MARILYN N. MUSGRAVE, Colorado 

RANDY NEUGEBAUER, Texas 

CHARLES W. BOUSTANY, JR., Louisiana 

JOHN R. ‘‘RANDY’’ KUHL, JR., New York 

VIRGINIA FOXX, North Carolina 

K. MICHAEL CONAWAY, Texas 

JEFF FORTENBERRY, Nebraska 

JEAN SCHMIDT, Ohio 

ADRIAN SMITH, Nebraska 

TIM WALBERG, Michigan 

PROFESSIONAL STAFF

ROBERT L. LAREW, Chief of Staff 

ANDREW W. BAKER, Chief Counsel 

APRIL SLAYTON, Communications Director 

WILLIAM E. O’CONNER, JR., Minority Staff Director 

(II) 

(III)

C O N T E N T S 

Page 

Baca, Hon. Joe, a Representative in Congress from California, prepared statement ...................................................................................................................... 6

Cuellar, Hon. Henry, a Representative in Congress from Texas, prepared 

statement .............................................................................................................. 7

Goodlatte, Hon. Bob, a Representative in Congress from Virginia, opening 

statement .............................................................................................................. 2

Graves, Hon. Sam, a Representative in Congress from Missouri, prepared 

statement .............................................................................................................. 8

King, Hon. Steve, a Representative in Congress from Iowa, opening statement ...................................................................................................................... 5

Kuhl, Jr., Hon. John R. ‘‘Randy’’, a Representative in Congress from New 

York, prepared statement .................................................................................... 9

Lampson, Hon. Nick, a Representative in Congress from Texas, prepared 

statement .............................................................................................................. 7

Mahoney, Hon. Tim, a Representative in Congress from Florida, opening 

statement .............................................................................................................. 4

Peterson, Hon. Collin C., a Representative in Congress from Minnesota, opening statement ........................................................................................................ 1

Prepared statement .......................................................................................... 2

Smith, Hon. Adrian, a Representative in Congress from Nebraska, prepared 

statement .............................................................................................................. 9

Walberg, Hon. Tim, a Representative in Congress from Michigan, prepared 

statement .............................................................................................................. 10

WITNESSES

Holt, Ph.D., James S., President and Principal, James S. Holt & Co., LLC; 

Agricultural Labor Economist, Washington, D.C. ............................................. 11

Prepared statement .......................................................................................... 13

Stallman, Bob, President, American Farm Bureau Federation; Rice and Cattle 

Producer, Columbus, TX ...................................................................................... 19

Prepared statement .......................................................................................... 21

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

NC ......................................................................................................................... 51

Prepared statement .......................................................................................... 52

Herring, C. Scott, Executive Vice President and COO, Farm Credit of Western 

New York, ACA, Batavia, NY ............................................................................. 53

Prepared statement .......................................................................................... 55

Goldstein, Bruce, Executive Director, Farmworker Justice, Washington, D.C. . 57

Prepared statement .......................................................................................... 58

Brown, Michael J., Senior Vice President, Legislative Affairs, American Meat 

Institute, Washington, D.C. ................................................................................ 61

Prepared statement .......................................................................................... 63

Carnes, J Allen, President, Winter Garden Produce; Chairman, Texas Vegetable Association; Director, South Texas Onion Committee, Texas Produce 

Association; Vice President, Carnes Farms Inc., Uvalde, TX ........................... 91

Prepared statement .......................................................................................... 93

Smoak, Mason G., Citrus Producer and Cattle Rancher, Lake Placid, FL ......... 97

Prepared statement .......................................................................................... 98

Yates, Harry B., Past-President, North Carolina Christmas Tree Association; 

Member, Board of Directors, National Christmas Tree Association, Boone, 

NC ......................................................................................................................... 99

Prepared statement .......................................................................................... 101

Page

IV

Mouw, Randall D., Dairy Producer; Chairman, District 12, California Milk 

Advisory Board, Ontario, CA; on behalf of Western United Dairymen; Dairy 

Farmers of America; and National Milk Producers Federation ....................... 102

Prepared statement .......................................................................................... 104

Atkinson, Keith, President, Virginia Agricultural Growers Association; Apple 

and Tobacco Producer, Java, VA ......................................................................... 106

Prepared statement .......................................................................................... 108

Roth, Rick, President and Principal Owner, Roth Farms, Inc.; Vice President 

and Member, Board of Directors, Florida Farm Bureau; Member, Board 

of Directors, Florida Fruit and Vegetable Association; Member, Board of 

Directors, Sugar Cane Growers Cooperative of Florida, Belle Glade, FL ....... 111

Prepared statement .......................................................................................... 113

SUBMITTED STATEMENTS

Agriculture Coalition for Immigration Reform, submitted article entitled, 

Time Fast Running Out for American Agriculture . . . .................................... 145

Hallstrom, Luawanna, Regelbrugge, Craig J., and Young, John, ACIR CoChairs, Agriculture Coalition for Immigration Reform, prepared statement . 142

Herseth Sandlin, Hon. Stephanie, submitted prepared statement and letters 

for Amber S. Brady, General Counsel/Director of Agricultural Policy, South 

Dakota Department of Agriculture, Pierre, SD ................................................. 136

King, Hon. Steve, submitted CRS report ............................................................... 121

Kuhl, Jr., Hon. John R. ‘‘Randy’’, submitted report entitled, Farm Labor 

Crisis: A New York State Perspective .................................................................. 119

(1)

HEARING TO REVIEW THE LABOR NEEDS OF 

AMERICAN AGRICULTURE 

THURSDAY, OCTOBER 4, 2007

HOUSE OF REPRESENTATIVES, COMMITTEE ON AGRICULTURE, Washington, D.C. 

The Committee met, pursuant to call, at 11:02 a.m., in Room 

1300 of the Longworth House Office Building, Hon. Collin C. Peterson [Chairman of the Committee] presiding. 

Members present: Representatives Peterson, Holden, McIntyre, 

Etheridge, Boswell, Baca, Cardoza, Scott, Herseth Sandlin, Cuellar, 

Costa, Salazar, Ellsworth, Boyda, Pomeroy, Kagen, Mahoney, Donnelly, Goodlatte, Lucas, Moran, King, Musgrave, Neugebauer, 

Foxx, Fortenberry, Conaway, Walberg, and Smith. 

Staff present: Alejandra Gonzalez-Arias, Tony Jackson, Tyler 

Jameson, Keith Jones, Rob Larew, John Riley, Sharon Rusnak, 

Lisa Shelton, April Slayton, Kristin Sosanie, Patricia Barr, Alise 

Kowalski, Stephanie Myers, and Jamie Weyer. 

OPENING STATEMENT OF HON. COLLIN C. PETERSON, A 

REPRESENTATIVE IN CONGRESS FROM MINNESOTA 

The CHAIRMAN. The Committee will come to order. I want to 

start by welcoming everyone to this hearing of the House Agriculture Committee. As we have traveled across the country, we 

have experienced firsthand the great diversity of agriculture in this 

country. While some issues change depending on the region, in 

every part of the country we have traveled, the topic of labor always come up, and it is usually followed by the word ‘‘crisis.’’ This 

is a major problem for producers, and sooner or later, we must find 

a way to address it. 

I want to thank Congressman Mahoney for his leadership in requesting that we hold this hearing on this topic, and I know that 

this is an important issue for the citrus growers and other producers in his district that have experienced this labor crisis firsthand. 

Although the Judiciary Committee has an important role in this 

matter, I think that it is important for this Committee to review 

the significant impact that the situation has on the agriculture industry. For better or for worse, agriculture has been on the front 

line of this issue and has focused attention on the serious consequence of labor shortage this country continues to experience. 

I believe that before we can find a meaningful solution, Congress 

must understand the scope and the depth of the problem across 

many industries, agriculture included. So this hearing today will 

2

focus on improving our understanding of the labor shortage and its 

impact on agriculture. This is not a hearing to review specific legislation or proposals. We are here to document the problem so that 

we can move forward as a Committee to work with other committees that have jurisdiction on these issues to be sure that the needs 

of agriculture are addressed in whatever that final solution to this 

serious problem will be. 

I again want to thank the witnesses who have joined us today 

to provide an honest and complete picture of the labor situation in 

American agriculture. I recognize that these are controversial 

issues that are not easy to address, and I appreciate the information that you will be providing to the Committee today. So again, 

I thank the witnesses for being here, and I am pleased to recognize 

my good friend, the Ranking Member from Virginia, Mr. Goodlatte. 

[The prepared statement of Mr. Peterson follows:]

PREPARED STATEMENT OF HON. COLLIN C. PETERSON, A REPRESENTATIVE IN

CONGRESS FROM MINNESOTA

I want to start by welcoming everyone to this hearing of the House Agriculture 

Committee. 

I’ve traveled across the country and have experienced first hand the great diversity of agriculture in this country. While some issues change, depending on the region, in every part of the country where I’ve traveled, the topic of labor always 

comes up, and it is usually followed by the word ‘‘crisis.’’ This is a major problem 

for producers, and sooner or later, we must find a way to address it. 

I want to thank Congressman Mahoney for requesting that we hold a hearing on 

this topic, and I know this is an important issue for the citrus growers and other 

producers in his district that have experienced this labor crisis first hand. 

Although the Judiciary Committee has an important role in this matter, I think 

that it is important for this Committee to review the significant impact that the situation has on the agriculture industry. For better or for worse, agriculture has been 

on the front line of this issue and has focused attention on the serious consequences 

of the labor shortage this country continues to experience. 

I believe that before we can find a meaningful solution, Congress must understand the scope and depth of the problem across many industries, agriculture included. So, this hearing today will focus on improving our understanding of the 

labor shortage and its impact on agriculture. This is not a hearing to review specific 

legislation or proposals—we are here to document the problem so that we can move 

forward as a Committee to work with the other Committees with jurisdiction on 

these issues to be sure that the needs of agriculture are addressed in whatever the 

final solution to this serious problem will be. 

I again want to thank the witnesses who have joined us today to provide an honest and complete picture of the labor situation in American agriculture. I recognize 

that these are controversial issues that are not easy to address, and I appreciate 

the information that you will be providing to this Committee today.

OPENING STATEMENT OF HON. BOB GOODLATTE, A 

REPRESENTATIVE IN CONGRESS FROM VIRGINIA 

Mr. GOODLATTE. Well, thank you, Mr. Chairman, and thank you 

for holding this hearing on this very important issue. Throughout 

the past 2 years as this Committee traveled the country and heard 

from farmers all over the nation regarding the farm bill we are 

working on right now, one of the common concerns shared by many 

farmers was the availability of reliable farm labor. 

What I have seen and heard leads me and many of my colleagues 

to conclude that the H–2A Temporary Agricultural Visa process is 

not working. I have talked face-to-face with producers who have 

had to deal with participating in a costly, time-consuming, and 

3

flawed program. Employers have to comply with a lengthy labor 

certification process that is slow, bureaucratic, and frustrating. 

In addition, they are forced to pay an artificially inflated wage 

rate. Many producers simply cannot afford the time and cost of 

complying with the H–2A Program. However, in order to find and 

retain the legal workers these employers depend on for the viability 

of their operations, they have no alternatives. 

In addition, as a long-time Member of the Judiciary Committee, 

I am aware of the illegal immigration crisis our country currently 

faces. It is estimated that there are 11 million illegal aliens currently living in the United Stated with over one million working in 

agriculture. Instead of encouraging more illegal immigration, successful guest worker reform should deter illegal immigration and 

help secure our borders. 

It is possible to simultaneously streamline the guest worker program, reduce illegal immigration, and protect our borders. That is 

why, as the Ranking Member of the House Agriculture Committee, 

and a Member of the Judiciary Committee, I introduced H.R. 1792, 

the Temporary Agricultural Labor Reform Act, a bipartisan bill 

that will reform the H–2A Guest Worker Program and create a 

more streamlined and fair process for everyone involved in the agriculture industry. 

I do not believe in rewarding those who have broken our nation’s 

immigration laws by granting them blanket amnesty. And H.R. 

1792 would do no such thing. Instead my bill would encourage the 

large population of illegal farm workers to come out of hiding and 

participate legally in the guest worker program. 

Potential workers would be required to return to their home 

countries and apply for the program legally from there. This would 

provide a legal temporary workforce that employers can call on 

when insufficient American labor cannot be found and help ensure 

that those temporary workers entering the country are not threats 

to our national security. 

We also need to address the troublesome wage issue. Employers 

are currently required to pay an inflated wage called the Adverse 

Effect Wage Rate, or AEWR. The AEWR was originally designed to 

protect similarly situated domestic workers from being adversely 

affected by guest workers coming into the country on a seasonal 

basis and being paid lower wages. 

However, the shortage of domestic workers in the farm workforce 

forces employers to hire foreign workers and thus is also forcing 

them to pay artificially inflated wages. My bill abolishes this unfair 

wage rate and creates a prevailing wage standard under which all 

workers are paid the same wage as workers doing similar work in 

that region. 

The facts are simple. The agriculture industry needs reliable 

farm labor. Workers need access to stable, legal, temporary employment. It is in our nation’s interest to create a sensible way for 

workers to come in on a temporary basis, fill empty jobs, and go 

back to their home countries. 

At this time, I would like to thank a member of our second panel, 

Mr. Keith Atkinson, for participating today. Mr. Atkinson is a tobacco grower from Virginia, and I appreciate the fact that he has 

4

taken time out from a busy harvest period on his farm to be here 

today to represent Virginia’s agriculture industry. 

Mr. Chairman, I look forward to hearing from our witnesses 

today and appreciate your efforts to bring this important issue before the Committee for review. 

The CHAIRMAN. I thank the gentleman for his statement, and all 

Members will be allowed to put in a statement for the record. I, 

however, told Mr. Mahoney that because of his leadership and his 

interest, I want to tell the folks in Florida that you have somebody 

who is really focused on this and working hard. So I am going to 

allow Mr. Mahoney to make an opening statement, and I guess if 

other Members feel the need, we can deal with that as we go here. 

But Mr. Mahoney, we appreciate your leadership, and it was because of him bugging me that we got this hearing going. So, we are 

pleased to recognize you for a statement. 

OPENING STATEMENT OF HON. TIM MAHONEY, A 

REPRESENTATIVE IN CONGRESS FROM FLORIDA 

Mr. MAHONEY. Thank you, Mr. Chairman. There has been a 

great debate in this country concerning the fact that middle and 

working class families are struggling. Average family income has 

declined while taxes, gasoline, homeowners and health insurance 

costs have skyrocketed. There has also been a great debate over the 

estimated 12 million illegal workers who are in this country and 

the urgent need to secure our borders. 

I am thankful to Chairman Peterson and Ranking Member Goodlatte for holding this important hearing today. It is critical that, as 

we debate what Washington needs to do to help American families 

prosper, we hear from the American farmer, rancher, and grower. 

We need to give voice to American agriculture’s needs for labor, as 

there is much at stake for our nation, should we not understand 

the reality of rural America. 

We must not allow partisan politics, that is more interested in 

political power than in the safety and security of the American people, to foster unwise legislation that prevents our crops from getting picked, thereby creating an economic and national security crisis. 

We have seen that a safe and secure food supply is vital to protecting America in the war on terror. For too long, this nation has 

taken its ranchers, farmers, and growers for granted, entering into 

reckless international trade agreements that give preference to foreign agriculture. For too long, we have ignored the threats of pest 

and disease that threaten our food supply. 

Now, the President, after he has failed to lead his party and this 

nation in developing a comprehensive immigration policy that secures our borders; enforces our laws; ensures that those whose 

labor we rely on that are here illegally pay their fair share; he 

wants to precipitate a crisis with a change in policy that could jeopardize our ability to harvest our crops, thereby increasing the cost 

of food, ruining the livelihoods of those who feed us, and making 

America less secure by becoming more dependent on foreign producers. 

I am proud to represent a district in the great State of Florida, 

which is a powerhouse of American agriculture. Florida produces 

5

nearly 80 percent of the orange juice consumed in the United 

States. Our agriculture industry creates 648,000 jobs and contributes $97 billion to our economy annually. We are proud to be able 

to put dinner on the table for millions of Americans and be a reliable source of good, safe, and affordable food. 

Without enough workers, the crops will rot in our fields, and the 

United States will be forced to import potentially unsafe food from 

other countries. America could become a net importer of food, just 

like we are with oil. This is a dangerous prospect. It would put our 

farmers and the American people at risk. It is time to put rhetoric 

aside and let the American people understand the problem facing 

American farmers. 

Let me be clear. I am not suggesting that illegal aliens should 

be granted amnesty. We are here today to get a firsthand assessment of the labor needs of our agriculture industry. Before we talk 

about solutions, we need to understand the problem. Our farmers 

are facing a growing threat, not just from labor shortages, but also 

from piecemeal governmental policies more interested in scoring 

political points than addressing the problem. 

This hearing today came about in part due to the Social Security 

Administration and Department of Homeland Security’s decision to 

change their policy, and issue and enforce No-Match letters to employers. This plan relies on inaccurate information contained in Social Security databases that could potentially jeopardize the jobs of 

American citizens. 

It is unfair to punish our farmers in a political effort to give the 

perception of getting tough on immigration without actually doing 

so. We need policies that do get tough on immigration by securing 

our borders, finding out who is here illegally, and making them pay 

their fair share, while punishing those who knowingly hire cheap, 

illegal labor. We need to develop solutions that work for our farmers instead of turning a blind eye on the broken system and forcing 

them to have to choose between feeding their families and breaking 

the law. 

I hope we all listen carefully today and understand it is time to 

stop playing politics and start looking for real practical solutions. 

This room and the Members of this Committee are committed to 

the American farmer. This is one of the very few places where partisan politics gets put away, and Members representing farmers, 

ranchers, and growers from around this great country come together to fight for agriculture. 

I want to thank the witnesses for coming forward and giving 

voice to this problem, and I look forward to working with my fellow 

Members on solutions that make America safe and all Americans 

prosper. Thank you, Mr. Chairman, I yield back my time. 

The CHAIRMAN. Thank you, Mr. Mahoney, and thank you for 

your leadership and your statement. Any other Members feel the 

need to make a statement? Otherwise, your statements will be 

made part of the record. You will be brief, Mr. King. 

OPENING STATEMENT OF HON. STEVE KING, A 

REPRESENTATIVE IN CONGRESS FROM IOWA 

Mr. KING. I thank you, Mr. Chairman, and I didn’t intend to 

offer a statement. I just think that it is appropriate for me to just 

6

say a few words. And I would just ask that we keep this discussion 

within the context of not the ‘‘piecemeal,’’ as the gentleman said, 

but the broader perspective here that we have with the immigration policy across the whole United States and all the industries 

that we have. We will recognize that industries compete against industries for labor; and we all want to uphold the rule of law, and 

most of us are opposed to amnesty. 

If we can meet some of those standards, talk about the impact 

of agriculture, maybe talk about how we could improve some recruitment lines coming from the unemployed, unskilled areas of the 

country over to the places where we need the labor, it would be appropriate for us to try to raise the overall average individual productivity of all of our workers in America. And within that context, 

I am interested in this testimony, and I thank the Chairman for 

yielding to me. 

The CHAIRMAN. I thank the gentleman for that statement. All 

other Members, your full statements will be made part of the 

record. 

[The prepared statements of Messers. Baca, Cuellar, Lampson, 

Graves, Kuhl, Smith, and Walberg follow:]

PREPARED STATEMENT OF HON. JOE BACA, A REPRESENTATIVE IN CONGRESS FROM

CALIFORNIA

I want to thank Chairman Peterson and Ranking Member Goodlatte for holding 

this important hearing today. 

I also want to thank each of our many witnesses for taking the time out of their 

schedules to come here today. 

I hope that you will be able to help us in Congress better understand the consequences of the current labor shortage in agriculture. 

I also look forward to hearing your views on what the Federal Government must 

do to help solve this problem. 

As Chairman of the Nutrition Subcommittee, Chairman of the Congressional Hispanic Caucus AND as a Member from California, farm labor is an issue I have 

worked on for many years. 

It’s no secret that I am a firm believer in comprehensive immigration reform that 

reflects American values such as family, compassion, equal opportunity and security. 

The current system is broken. People continue to live in fear, and America continues to face a huge economic and humanitarian crisis. 

Yet Congress has STILL failed to pass this urgently needed reform, at the expense of American families. 

And nowhere has this crisis been more apparent than in agriculture. 

Make no mistake—a labor shortage in agriculture does exist. 

One farmer from California said to me, ‘‘I am at a point where I am planting a 

seed in the ground and not knowing if I will be able to harvest it.’’

This problem not only affects our farmers, but our families as well. In the farm 

bill the Committee passed this summer, we invested significant resources into nutrition programs and fresh fruits and vegetables. 

But how much good can these programs do when California lost 30% of its pear 

crop last year because there weren’t enough workers to pick them? 

All of this is leading to higher food prices for working families and increased dependence on foreign imports, potentially putting Americans in danger. 

Just this past summer the Agriculture Committee held hearings to address contamination in imported food products from China. 

This is unfortunate, because unlike many other issues we face, this is a problem 

we CAN solve. 

Our farmers NEED this workforce and we already HAVE people who want to fill 

these jobs. We simply need to create a fair process that will provide security for both 

employers and employees. 

Failure to address this situation will hurt all of us—whether it’s the farmer, the 

worker or the consumer—because farm labor quite literally puts food on our tables. 

7

I look forward to working within and without the Committee, using all my abilities and whatever resources available to solve this crisis. 

Again, I want to thank Chairman Peterson and Ranking Member Goodlatte for 

addressing this important issue. 

I would also like to thank our witnesses for coming today and I look forward to 

hearing from all of you. 

Thank you. 

PREPARED STATEMENT OF HON. HENRY CUELLAR, A REPRESENTATIVE IN CONGRESS

FROM TEXAS

Mr. Chairman, thank you for holding this hearing. And I thank the witnesses for 

taking the time to come and testify here today. 

I want to extend a special welcome to J Allen Carnes, a south Texas vegetable 

producer who is here to testify today. J Allen is Vice President of Carnes Farms, 

Inc., President of the Texas Vegetable Association, Director of the Texas Produce Association, and Director of the South Texas Onion Committee. 

The labor needs of U.S. agriculture must be addressed by Congress. Immigration 

policy for agriculture needs to be brought up to date taking into account issues of 

homeland security, food safety, and food availability. 

Labor shortages are one of the most pressing issues facing U.S. agriculture today. 

According to the Congressional Research Service, more than half the seasonal workers working in agriculture are not authorized to hold jobs in the United States. 

South Texas and other border areas have unique problems and opportunities with 

regard to the availability of agriculture workers from Mexico. In addition, a long 

history of cross-border labor and current homeland security border issues in general 

give south Texas a unique perspective on this issue. 

Some sectors of agriculture are dependent on non-American labor sources to a 

greater extent than others. 

In my district horticultural crops have seasonal labor needs, generally peaking in 

June or July when fruits and vegetables are harvested. 

Ranchers also face seasonal demand for labor during periods when cattle are 

moved and shipped. Recent infestations of cattle fever ticks have dramatically increased labor needs for ranchers, even during what were formerly slow periods. 

It is difficult to meet seasonal demands with locally available labor. Local labor 

gravitates towards full-time, year-round employment. To facilitate the use of temporary, legal labor from other countries, the procedures for H–2A and other programs need to be streamlined and simplified. 

We all have heard stories about growers who have cut back acreage due to a lack 

of labor. 

We have recently heard stories of producers taking production to the worker by 

renting land in Mexico and shipping produce to the U.S. 

Within the context of national security, guaranteeing employment opportunities 

for American citizens, and providing a safe, dependable, and efficient source of food; 

new policies must be developed to allow agriculture to continue to serve the American people. 

The H–2A program is complicated, unresponsive, expensive, and litigationplagued. It supplies only 2 percent of the agriculture labor force. It cannot meet the 

needs of American growers and producers unless it is substantially overhauled. 

I look forward to the testimony from today’s panels. 

PREPARED STATEMENT OF HON. NICK LAMPSON, A REPRESENTATIVE IN CONGRESS

FROM TEXAS

Chairman Peterson and fellow colleagues, I am glad we are here today to discuss 

the labor needs of American agriculture, and I thank all of our panelists for coming 

here today to discuss this critical issue with us. While this Congress has struggled 

the past few years to address a broken immigration system and the need to secure 

our borders, the needs of small business owners and farmers have been overlooked. 

While we all agree that securing our borders, enforcing our laws, and reforming immigration are immediate necessities, we must also realize what our inability to put 

aside partisan rhetoric in order to solve this problem is hurting our farmers, small 

business owners, their American employees, and the seasonal workers who want to 

come to this country to earn an honest living. And eventually, in the next few weeks 

or months, ordinary American consumers will start to feel the affects of our inaction. 

8

I am greatly dismayed by the state of affairs and the paralyzing affects our partisanship and lack of action are having on our nation’s agricultural producers. This 

issue was brought directly to my attention 2 days ago when an oyster farmer from 

my district called me frantically. Because Congress failed to extend the waiver allowing returning H–2B visa workers to be excluded from the cap, he will not be able 

to get the 300 temporary employees he depends on to keep his business open this 

season. He filled out all of the paperwork, got approval from the Department of 

Labor, and waited his turn to file his paperwork with USCIS. But on Monday he 

got the news that despite following the law and going through the proper procedures, he would be denied his temporary workers. Seasonal businesses throughout 

the country encountered the same problem this week when they were notified that 

as of September 27th the cap for H–2B visas had been reached for the first half 

of FY 2008. Unfortunately, the oyster season begins and ends within the first half 

the fiscal year and my constituent most likely will have to shut down his operation 

for the first time. Not only will this affect him and those temporary workers, but 

many other constituents of mine that he employs, his distributors, and the restaurants and consumers that buy oysters. 

The economy of southeast Texas not only depends on the fish and seafood harvested from the Gulf, but the rice, cotton, and sorghum harvested in our fields. Although farmers use a specific agriculture visa—H–2A—this affects all businesses 

that depend on seasonal workers to keep our economy going. These seasonal workers also depend on this income—which dwarves what they earn in their home countries—to get their families through the year. So not only do they help our economy, 

but their own by bringing home American dollars. 

For the sake of our farmers, their employees, consumers, and all of our constituents, we must put aside partisanship and rhetoric to reform our broken system. 

Otherwise we risk putting people out of business, losing jobs, and forcing higher 

prices for our food. 

PREPARED STATEMENT OF HON. SAM GRAVES, A REPRESENTATIVE IN CONGRESS FROM

MISSOURI

Thank you, Chairman Peterson and Ranking Member Goodlatte for holding this 

important hearing. I look forward to hearing from today’s distinguished witnesses. 

Agriculture is the economic engine of Missouri; it is the state’s top industry and 

it depends on labor. I believe we must work to fulfill agriculture’s labor needs, while 

always remaining vigilant against the employment of illegal aliens. 

The employment of illegal aliens is a threat to the security of our food supply. 

Illegal aliens have already broken the laws of the United States at least once. We 

cannot reward illegal aliens for breaking our laws, but this goes even beyond that. 

We absolutely need to be able to verify who is handling our food supply. It is a national security issue without question. If we cannot do this, the potential for abuse 

and damage is tremendous. 

I strongly support efforts to give employers more tools to screen potential employees. Employers should not have to be looking over their shoulder for a discrimination lawsuit when they are just being diligent in pursuing and verifying the information of their potential employees. It is their duty and obligation to ask the tough 

questions, and they should not be penalized for ensuring that job applications are 

legal. 

Employers must have access to a system whereby they can immediately verify a 

job applicant’s legal status and whether or not a Social Security Number is already 

in use by somebody else through the Department of Homeland Security and Social 

Security Administration. We must also enforce strict standards for what documents 

can be used and accepted for employment purposes. 

I have heard from many constituents that there is a shortage of labor in many 

agricultural sectors. And I have also heard from these very same constituents their 

abhorrence to employ illegal aliens. They have rightly pointed out that fewer illegal 

aliens would be applying for jobs in the United States if we successfully secured the 

border, so accomplishing that is certainly an important part of the equation. 

My only question to our witnesses today is what should we be doing in Congress 

to make sure workers in the agricultural sector are verifiable, eligible, and legal? 

Thanks again for holding this timely hearing, and I look forward to working with 

the Committee, the Executive Branch, and today’s witnesses to develop a program 

to do just that. 

9

* The information referred to is at the end of the hearing on p. 119. 

PREPARED STATEMENT OF HON. JOHN R. ‘‘RANDY’’ KUHL, JR., A REPRESENTATIVE IN

CONGRESS FROM NEW YORK

Mr. Chairman—I would like to offer an opening statement. Thank you Mr. Chairman. 

I rise today to address a serious issue that has steadily escalated in our Congressional districts over the last few months: the debate over immigration reform. While 

I recognize the importance of border security, and am a supporter of border security 

bills, we cannot sacrifice the needs of our farm community. At this time, it is imperative that we establish reasonable and effective farm worker programs in order to 

sustain our agricultural vitality. 

In an agriculture and tourism rich district, such as the 29th Congressional District in New York, many businesses depend on temporary migrant workers. There 

are over: 6,000 farms in my district alone, covering over 1.2 million acres and employing thousands of workers. New York State ranks third in the nation in dairy 

production, wine, and juice grape production. New York State also produces a variety of specialty crops, livestock, fruits and vegetables, as well as traditional row 

crops including hay, soybeans, corn, oats and wheat. Without workers, our farm 

community will close its doors, which we cannot allow to happen. 

The Farm Credit Associations of New York, the largest lenders to New York State 

agriculture, recently released a statement describing how the unprecedented and aggressive enforcement of U.S. immigration laws is hurting farmers in New York 

State. In the statement, the lenders said, ‘‘Over the past months, the Immigration 

and Customs Enforcement agency raids attempting to identify illegal immigrants 

have been conducted on a number of New York farms. In some cases, farmers have 

been unable to harvest or market crops as a result of these disruptions.’’ The lenders further state, ‘‘If this continues, we conservatively estimate that New York State 

will lose in excess of 900 farms, $195 million in value of agricultural production and 

over 200,000 acres in production in agriculture over the next 24 months.’’

I have spoken to many farmers in my district over the past months on immigration, and rest assured, I know the critical importance of this issue to agriculture 

industry. I have worked for my entire career in public life to do all that I can to 

support the agricultural industry in New York, and I will absolutely support legislation that allows an available agricultural workforce while ensuring that our national 

security is also improved through appropriate controls. We must put everything on 

the table and move forward in a manner that does not harm the strength of the 

farm community. It is time that we, as Members of Congress, work together to find 

a real solution to the problem of illegal immigration. 

As a strong proponent of meaningful border security measures, I believe a nonamnesty agricultural guest worker program should be discussed, debated, and enacted. Such a proposal should reasonably address immigration reform in a way that 

protects our citizens while acknowledging the important economic contribution of 

these temporary workers. 

I look forward to working with the Committee as this process continues, and believe that we can establish an available agricultural workforce without compromising our national security. 

I would also like to submit into the Committee record a document prepared by 

the New York Farm Bureau entitled ‘‘Farm Labor Crisis: A New York State Perspective,’’ * which demonstrates the importance of immigration reform in New York. 

Thank you, Mr. Chairman; I yield back the balance of my time. 

PREPARED STATEMENT OF HON. ADRIAN SMITH, A REPRESENTATIVE IN CONGRESS

FROM NEBRASKA

Good morning. I would like to thank Chairman Peterson for holding today’s hearing on an issue of great concern in my district. 

This hearing provides us the opportunity to address some of the challenges agriculture producers face in meeting their workforce needs. 

Our goal in this Committee today is to address employers’ concerns in obtaining 

and maintaining a legal workforce. Agriculture producers, as with other employers, 

must have a stable and reliable workforce in order to produce safe products and be 

competitive in global markets. It is both untenable and irresponsible for Congress 

to abdicate its duties and instead make employers and business owners the sole 

source of enforcement of our immigration laws. 

10

I have long called for a comprehensive immigration plan which targets this problem at its source—the border—rather than in our fields and factories. 

Therefore, as this Congress addresses the issues of immigration reform and workforce needs, we must work to enforce our borders and address the H–2A visa program to remove future uncertainties for employers. 

Mr. Chairman, I thank you for your leadership in holding this hearing and I look 

forward to hearing from the witnesses. 

PREPARED STATEMENT OF HON. TIM WALBERG, A REPRESENTATIVE IN CONGRESS

FROM MICHIGAN

While it looks like the once red-hot immigration debate may have cooled in Congress, immigration issues continue to affect most Americans, especially in the agriculture community, every day. 

This is especially true for the farmers of south-central Michigan. Earlier this year 

I conducted a seven county, 2 day listening tour with members of the agriculture 

community in south-central Michigan, and I heard from multiple folks about how 

the immigration issue affects them each day. 

As we consider the issue of immigration and how it relates to agriculture policy, 

it is important to first look to our past. 

The United States is a nation of immigrants and was founded on ideals that 

honor this tradition. For generations, freedom-loving people from around the world 

have come to America to make a better life for themselves and their families. 

Immigrants wanting to join our citizenry should be encouraged and assisted in 

doing so the same way millions of immigrants have legally done so for generations. 

Though the tenacity of individuals who immigrate to our nation is admirable, the 

government has a duty to secure our borders and ensure that those coming to our 

country do so legally. The U.S. Immigration and Customs Enforcement agency estimates that around 500,000 illegal immigrants enter the United States every year. 

Illegal immigration poses an unacceptable threat to our national security and 

must not be allowed to continue. It is my belief that any and all attempts to enact 

immigration reform must not include amnesty for illegal immigrants. 

However, merely opposing amnesty for illegal immigrants is not sufficient, especially if we want many of our local farms to survive. Throughout Capitol Hill debates on immigration and the farm bill this year, I have consistently stated that 

our country needs a work permit program that meets the evolving needs of today’s 

agriculture industry. 

One of biggest problems in today’s immigration system is bureaucratic red-tape 

for agriculture employees. The current H–2A program does not assist the average 

apple, dairy or corn farmer. 

The H–2A program is also not fair in comparison to the H–2B program. Although 

these two programs are very similar, the H–2A program requires more funding and 

paperwork, adversely impacting employers who rely upon this program. 

Agriculture has traditionally been in the forefront of this debate, but we must not 

forget that landscaping, construction, tourism and other industries employing temporary workers have also been impacted by the bureaucratic red-tape plaguing these 

programs. 

While we all agree there is a major need for immigration reform in the United 

States, this reform needs to ensure the security and economy of our nation is protected. 

If we can deny amnesty to illegal immigrants and eliminate the massive amount 

of inefficient bureaucracy in today’s immigration system, we can successfully establish a work permit program that meets the evolving needs of today’s agriculture industry.

The CHAIRMAN. We are pleased to welcome the first panel, Dr. 

James Holt from Washington, D.C.; Mr. Bob Stallman, President of 

the American Farm Bureau Federation; Mr. Lee Wicker, Deputy 

Director, North Carolina Growers Association; Mr. Scott Herring, 

Executive Vice President and CEO of Farm Credit of Western New 

York; Mr. Bruce Goldstein, Executive Director, Farmworker Justice; and Mr. Mike Brown, Senior Vice President for Legislative Affairs, AMI. 

We have votes coming up. Five of them are 5 minute votes, so 

I guess we are talking about a little over a half hour or 45 minutes. 

11

So I would recognize the first witness, and then we will probably 

have to take a break, and we will resume as soon as the votes are 

completed. So, Mr. Holt, welcome to the Committee. 

STATEMENT OF JAMES S. HOLT, PH.D., PRESIDENT AND

PRINCIPAL, JAMES S. HOLT & CO., LLC; AGRICULTURAL 

LABOR ECONOMIST, WASHINGTON, D.C. 

Dr. HOLT. Thank you, Mr. Chairman, for the invitation to provide testimony for this hearing on the labor needs of U.S. agriculture, and, yes, I am going to follow the word ‘‘labor’’ with ‘‘crisis.’’

The U.S. agricultural industry is in the midst of a labor crisis, 

and let me cite just a few statistics to illustrate it. More than 

55,000 U.S. farmers hire labor and pay an estimated payroll of $21 

billion. The cost of hired labor accounts for $1 of every $8 of farm 

production expenses on average and significantly more in the labor 

intensive fruit, vegetable, and horticultural sectors. 

The more than three million agricultural jobs each year are filled 

by an estimated 2.5 million hired farm workers. Seventy-eight percent of the U.S. seasonal agricultural workforce are foreign born. 

The U.S. Department of Labor documents that at least 53 percent 

of U.S. seasonal agricultural workers are not legally entitled to 

work in the United States. The actual percentage is much higher. 

One of every six seasonal agricultural workers is new to the U.S. 

hired agricultural workforce each year, and an astonishing 99 percent of those workers report they are not legally entitled to work 

in the United States. Forty percent of the U.S. seasonal agricultural workforce are international migrants who reenter the country 

each year to perform agricultural work. 

This system is no longer tenable. The reason for the U.S. agricultural labor crisis is that for more than 2 decades, economic growth 

and job creation in the U.S. have outpaced the expansion of the 

U.S. labor force through natural birth and legal immigration. There 

are now literally millions more jobs in our economy than there are 

American workers, natural born or legally admitted, to fill them. 

Not surprisingly, the legal workers have gravitated to the more 

attractive, easier, more permanent, more skilled jobs close to their 

urban home and environment. Seasonal jobs, manual jobs, rural 

jobs have suffered. In no industry has the impact been greater than 

in agriculture, which is largely seasonal, manual, and rural. 

The proportion of seasonal agricultural workers who are illegal 

has grown steadily for the past 2 decades, in spite of the fact that 

wage rates in agriculture have grown more rapidly than in non-agricultural wages. The average hourly wage for U.S. field and livestock workers in the United States is now $9.44 an hour. 

No informed person seriously contends that wages, benefits, and 

working conditions in seasonal agricultural work can be raised sufficiently to attract workers away from their permanent, non-agricultural jobs, and the numbers needed to replace the illegal alien 

agricultural workforce and maintain the economic competitiveness 

of producers. U.S. growers are in economic competition with foreign 

growers in both U.S. domestic and global agricultural markets. 

If there is upward pressure on U.S. producers’ production costs 

from, for example, a shortage of labor, some domestic production 

12

will become uncompetitive, and farmers will be forced out of business. This adjustment will continue until the competition for the 

remaining supply of labor has diminished to the point where there 

is no longer upward pressure on farm production costs. 

Given the huge proportion of illegal workers in the current farm 

workforce, the downward adjustment in domestic agricultural production that would have to take place to clear the market of alien 

workers in agriculture is immense. Consumers will likely feel little 

impact from this adjustment because farm producers will quickly 

feel the void left by domestic producers. 

However, domestic workers in the upstream and downstream 

jobs will be heavily impacted, as will farmers. There are about 3.1 

such upstream and downstream non-agricultural jobs that are dependent on U.S. agricultural production. And many of these will 

disappear. 

Of even greater concern is that the U.S. will be substantially 

more dependent on foreign suppliers for our food and fiber. The 

only current program for legally employing foreign workers in the 

United States is the H–2A Temporary Agricultural Worker Program. Even though the H–2A Program has grown substantially in 

the past few years, it still accounts for a miniscule proportion of agricultural employment. Fewer than 2 percent of U.S. agricultural 

job opportunities and barely 1 percent of U.S. farmers are H–2A 

certified. 

In short, we currently have two agricultural guest worker programs operating in this country. A legal guest worker program that 

fills a miniscule 2 percent of agricultural jobs and an illegal guest 

worker program that fills at least half and likely more than 3⁄4 of 

U.S. agricultural jobs. 

The nation’s agricultural labor policy is in desperate need of reform. Reforms are needed in both the administration of the H–2A 

Program, the H–2A regulations, and the nation’s basic agricultural 

immigration statutes. Congress has had before it for more than 6 

years the Agricultural Job Opportunities and Benefits Act. AgJOBS 

represents an historic milestone in that it has brought together agricultural organizations, farm worker advocacy organizations, farm 

worker unions, ethnic groups, religious organizations that have historically battled over agricultural labor and guest worker policies. 

AgJOBS is a serious, well thought-out, well balanced response to 

the nation’s agricultural labor crisis and has the support of the 

overwhelming majority of the agricultural organizations nationwide. 

The Administration also has before it an agenda of proposals for 

administrative and procedural streamlining of the H–2A Program 

offered in response to the promulgation of the Society Security mismatch regulations. These administrative reforms are urgently 

needed. They are not a substitute for legislative action. It is clear 

that the status quo , a U.S. agricultural industry almost completely 

dependent on unauthorized workers who have entered the U.S. illegally is untenable. 

It is equally clear the ceding U.S. production of food and fiber to 

foreign producers is untenable. Congress and the Administration 

have ignored this problem for far too long. The time to act is now. 

Thank you, Mr. Chairman. 

13

[The prepared statement of Dr. Holt follows:]

PREPARED STATEMENT OF JAMES S. HOLT, PH.D., PRESIDENT AND PRINCIPAL, JAMES

S. HOLT & CO., LLC; AGRICULTURAL LABOR ECONOMIST, WASHINGTON, D.C. 

Mr. Chairman, thank you for the invitation to provide testimony for this hearing. 

I am an agricultural labor economist. I was a Professor of Agricultural Economics 

and Farm Management at The Pennsylvania State University for 16 years. For the 

past 30 years I have conducted research, consulted and lectured on agricultural 

labor and human resource management, immigration and employment issues, and 

the H–2A temporary agricultural worker program for government agencies, universities and private organizations. I have been a consultant to many grower associations, individual farming operations and other employers throughout the United 

States using the H–2A program, and to national agricultural organizations, including the National Council of Agricultural Employers (NCAE). However, I am not representing any specific organization here today. 

I do not speak lightly, nor engage in hyperbole, when I testify today that the U.S. 

agricultural industry is in the midst of a labor crises, the resolution of which will 

determine whether U.S. producers of fruits, vegetables, and horticultural and other 

specialty commodities are more than marginal participants in U.S. and global markets for the commodities they produce in future decades. The current agricultural 

labor crisis will also have a profound impact on the U.S. dairy and sheep industries, 

U.S. grain producers, the agricultural processing sector, and many other agricultural operations. It will also largely determine the future of the domestic upstream 

and downstream businesses that service these sectors. 

The labor intensive fruit, vegetable and horticultural sectors are already overwhelmingly dependent on foreign workers, the majority of whom are working in the 

U.S. illegally. The U.S. dairy, meat packing, and food processing sectors are significantly dependent on a foreign, and preponderantly illegal, workforce and becoming 

more so every year. U.S. custom combine operators who harvest the great plains 

grain crops, and sheep producers in the western states, are heavily dependent on 

foreign workers obtained through the nearly dysfunctional H–2A program. The labor 

problems of U.S. agriculture have been ignored and swept under the rug for decades, only to become more problematical with each passing year. At a minimum, 

several hundred thousand new farm workers have illegally entered the United 

States to work on U.S. farms, and fill the jobs vacated several hundred thousand 

illegally present farm workers who have moved into the non-farm workforce since 

the Members of this Committee were last elected or re-elected. The public is now 

insisting, and our national security demands, that our government and the Congress 

squarely face and resolve this problem. How you resolve it will determine the future 

of important sectors of U.S. agriculture. 

Hired Farm Employment and the U.S. Hired Farm Work Force 

Hired labor is an essential input in U.S. agriculture. More than 550,000 U.S. 

farmers hire workers to fill more than three million agricultural jobs each year. The 

farms that hire labor are the backbone of American agriculture, accounting for the 

overwhelming majority of U.S. agricultural production. Farmers pay an annual payroll estimated at $21 billion. Expenses for hired and contract labor account, on average, for $1 of every $8 of farm production expenses, 

and up to $1 of every $3 or more of farm production expenses on farms in the labor 

intensive fruit, vegetable and horticultural sectors. 

Because a high proportion of U.S. agricultural jobs are seasonal, the three million 

U.S. agricultural jobs each year are filled by a hired farm workforce of about 2.5 

million persons. About 1.6 million of these are non-casual hired farm workers who 

perform more than 25 days of hired farm work a year. Approximately 1.2 million 

of the non-casual hired farm workforce are likely not authorized to work in the U.S. 

The fact that the U.S. hired farm workforce is overwhelmingly illegal is not speculative, it is well documented. Ironically, agriculture is the one sector of the U.S. 

workforce for which the Federal Government actually produces official statistics on 

illegal alien employment. These come from the National Agricultural Worker Survey 

(NAWS), a survey program begun after the enactment of the Immigration Reform 

and Control Act of 1986, and conducted biannually by the U.S. Department of Labor 

Among other questions, the survey asks seasonal agricultural workers whether they 

are authorized to work in the United States. In the first survey, conducted in FY 

1989, 7% of U.S. seasonal agricultural workers said they were unauthorized. By FY 

1990–1991 the figure was 16%. By FY 1992–1993 it was 28%. By FY 1994–1995 it 

was 37%. In the most recently published NAWS survey, 53 percent of all seasonal 

agricultural workers admitted they were not authorized to work in the U.S. ExperiVerDate 0ct 09 2002 10:21 May 05, 2009 Jkt 041481 PO 00000 Frm 00017 Fmt 6633 Sfmt 6621 I:\DOCS\110-30\48999.TXT SOLEM PsN: REBEKA
14

ence on the ground, based on work place audits and other evidence, suggests that 

closer to 75 percent of U.S. farm workers are not legally entitled to work in the U.S. 

Even more significant for the future is that 1⁄6 of seasonal agricultural workers 

are ‘‘newcomers’’, working their first season in U.S. agriculture. An astonishing 99 

percent of these newcomers self-identify that they are not authorized to work in the 

U.S. This means that for all practical purposes every new worker entering the U.S. 

hired crop workforce is illegal. The NAWS does not survey livestock workers, and 

the percentage of illegal workers and replacements may be somewhat lower than 

in the crop sector. However, it would be a huge mistake to assume that illegal workers are not a large and rapidly growing proportion of the hired workforce in the livestock sector as well. Dairying, in particular, is heavily dependent on foreign born, 

and likely preponderantly illegal, workers. 

Social Security Administration No-Match statistics also document the high level 

of illegal alien employment in agriculture. Agriculture, which accounts for only 1.2 

percent of U.S. employment, accounts for 17 percent of all Social Security nomatches, more than any other sector of the U.S. labor force. 

Some commentators blame U.S. agriculture for not attracting and retaining a 

legal U.S. workforce. I believe that is misplaced blame. The decade of the 1990’s was 

a period of unprecedented economic growth and job creation in the U.S. But it was 

also a decade when the rate of growth in the native-born U.S. workforce continued 

to slow, and the number of new labor force entrants from the native born population 

and legally admitted foreign workers was far below the rate of new job creation. At 

the beginning of the decade, 31% of the U.S. seasonal agricultural workforce was 

still U.S. born. By the end of the decade, only 19% was U.S. born. During the decade 

of the 1990’s the real hourly wage rate in agriculture increased at a more rapid rate 

than for the non-agricultural workforce. But the lure of year round work, easier jobs 

and more pleasant working conditions in most non-agricultural employment was obviously enough to attract many U.S. workers out of agriculture, even into jobs in 

which the nominal hourly wage was lower than in agriculture. By the FY 1997–1998 

NAWS survey, 81% of U.S. seasonal agricultural workers were foreign born and 77% 

were born in Mexico. One-third had immigrated to the U.S. within the last 2 years. 

More than 1⁄3 were under the age of 25, and 2⁄3 were under the age of 35. 

The U.S. seasonal agricultural workforce is a very diverse workforce in many respects. One of the respects in which it is diverse is in its international migratory 

status. About 40% of U.S. seasonal agricultural workers are international migrants 

whose permanent residence is outside the United States and who come into the U.S. 

temporarily to perform agricultural work. This workforce is preponderantly young, 

single and illegal. The other 60% of the seasonal agricultural workforce are permanent residents of the U.S. This group includes most U.S. born farm workers, but 

is also majority foreign born and majority illegal. Over-all, only 1⁄2 of the U.S. seasonal agricultural workforce are married, and only 1⁄4 have children with whom they 

reside in the U.S. 

Agricultural migrancy within the U.S. is the exception rather than the rule. Almost 2⁄3 of U.S. seasonal agricultural workers hold only one farm job in the U.S. 

during the year, and more than 90% hold three or fewer jobs per year. Only 1% hold 

as many as six different agricultural jobs during the year. Only 17% are what are 

traditional ‘‘follow-the-crop’’ migrants, who hold two or more agricultural jobs during 

the year which are more than 75 miles apart and are more than 75 miles from their 

residence. 

The Impact of Immigration Policy on Agriculture 

Now let us relate this to immigration policy. 

Economic growth in the United States (or any other country in the world) is determined by two factors, growth in the labor force—the number of persons who are engaged in producing goods and services—and growth in productivity—the quantity of 

goods and services each worker produces each hour and each day they work. The 

story of how the United States has become the economic engine of the world is 

largely the story of an expanding labor force coupled with phenomenal improvements in worker productivity. Although often overlooked or taken for granted in this 

story, the phenomenal growth in U.S. agricultural productivity has been a critical 

contributor to U.S. economic growth. It has enabled an ever larger proportion of the 

U.S. labor force to engage in the production of other goods and services rather than 

food and fiber, to the point where less than 2 percent of the U.S. labor force is now 

engaged in agriculture. 

Immigration has also been an important historical factor in the nation’s economic 

growth. It has enabled the expansion of the U.S. labor force far more rapidly than 

would have occurred through normal reproduction by the native born population. 

Imagine, for example, that we had stopped immigration in 1776 and relied only on 

15

natural birth after that, or that we had closed our borders in 1812, or 1865, or 1910, 

or even 1950. 

Immigration is even more important to sustaining U.S. economic growth today 

than it was in any of those past periods. That is because, like Japan and Western 

Europe before us, and increasingly even Mexico, China, India, and second world 

countries, the birth rate of native born Americans is declining. In some developed 

countries birth rates have declined to the point where they are not even replacing, 

much less expanding, the labor force. It is important that we understand that even 

in the U.S. we long ago passed the point where we were producing enough native 

born workers to fill all the new jobs being created in the U.S. economy. In fact, we 

long ago passed the point where we were producing enough native born workers 

AND legally admitting enough aliens, to fill all of the jobs we were creating in the 

U.S. 

When I hear people say illegal aliens only take the jobs Americans won’t do, I 

say that is a result, not a cause. Illegal aliens take the jobs there aren’t enough 

American workers to fill. There are literally millions more JOBS in our economy 

than there are American workers to fill them, even if we include in the term ‘‘American worker’’ every person who is legally entitled to work in the United States, 

whether they were born here or not. Given this huge imbalance between jobs and 

workers, it is not surprising that American workers gravitate to the more attractive 

jobs, leaving the less attractive ones to be filled by illegal immigrants. 

The reality is that the U.S. is dependent on illegal immigration for economic 

growth, and growing more so by the year. The rate of growth in the native born 

labor force continues to decline, and could become negative as it already has in some 

developed economies. The only way we can sustain our current level of economic activity, much less expand it, is through in-migration of alien workers. That is why 

Alan Greenspan was so concerned about immigration policy while he was Chairman 

of the Federal Reserve. Job creation is one of the most important engines of economic growth. But job creation can not occur if there are not workers to fill the jobs. 

The economic slow down after 9/11 provided a window on the importance of immigration to the national economy. One of the most important contributors to that 

slow down was a temporary reduction in both legal and illegal immigration, coupled 

with a small exodus of foreign workers already here, because some foreign workers 

were afraid to be in the United States. 

Imagine, therefore, what the economic impact of really effective border control 

that stopped illegal immigration would be. And then imagine, if you dare, what the 

economic impact would be of removing from the workforce, through effective work 

place enforcement or otherwise, the illegal workers who are already here. 

Some suggest that such a scenario would be a good thing. According to this view, 

agricultural employers should be left to ‘‘compete in the labor market just like other 

employers have to do.’’ Under this scenario, there would be strict workplace enforcement and no guest workers. To secure legal workers and remain in business, agricultural employers would have to attract sufficient workers away from competing 

non-agricultural employers by raising wages and benefits. Those who were unwilling 

or unable to do so would have to go out of business or move their production outside 

the United States. Meanwhile, according to this scenario, the domestic workers remaining in farm work would enjoy higher wages and improved working conditions. 

No informed person seriously contends that wages, benefits and working conditions in seasonal agricultural work can be raised sufficiently to attract workers 

away from their permanent nonagricultural jobs in the numbers needed to replace 

the illegal alien agricultural workforce and maintain the economic competitiveness 

of U.S. producers. With hired labor accounting, on average, for 12 percent of all 

farm production costs, a substantial increase in wage and/or benefit costs will have 

a substantial impact on growers’ over-all production costs. U.S. growers are economically competitive with foreign producers at approximately current production 

costs. If U.S. producers’ production costs are forced up by, for example, restricting 

the supply of labor, some U.S. production will become uncompetitive in the foreign 

and domestic markets in which U.S. and foreign producers compete. U.S. producers 

will be forced out of business until the competition for domestic farm workers has 

diminished to the point where the remaining U.S. producers’ production costs are 

again at global equilibrium levels. The end result of this process will be that domestic farm worker wages and working conditions (and the production costs of surviving 

producers) will be at approximately current levels, while the volume of domestic production will have declined sufficiently that there is no longer upward pressure on domestic farm worker wages. Given the large proportion of illegal workers in the current farm labor market, the reduction in domestic production is likely to have to 

be very substantial to clear the labor force of illegal workers. Consumers will likely 

16

feel little impact, because the market share abandoned by U.S. producers will be 

quickly filled by foreign production. 

The domestic employment impacts of this adjustment will not be limited to alien 

farm workers and U.S. farmers. Since agricultural production is tied to the land, 

the labor intensive functions of the agricultural production process cannot be foreign-sourced without foreign-sourcing the entire production process. We cannot, for 

example, send the harvesting process or the thinning process overseas. Either the 

product is entirely grown, harvested, transported and in many cases initially processed in the United States, or all of these functions are done somewhere else, even 

though only one or two steps in the production process may be highly labor intensive. When the product is grown, harvested, transported and processed somewhere 

else, all the jobs associated with these functions are exported, not just the seasonal 

field jobs. These include the so-called ‘‘upstream’’ and ‘‘downstream’’ jobs that support, and are created by, the growing of agricultural products. U.S. Department of 

Agriculture studies indicate that there are about 3.1 such upstream and downstream jobs for every on-farm job. Most of these upstream and downstream jobs are 

‘‘good’’ jobs, i.e. permanent, average or better paying jobs held by citizens and permanent residents. Thus, we would be exporting about three times as many jobs of 

U.S. citizens and permanent residents as we would farm jobs filled by aliens if we 

restrict access to alien agricultural workers. 

The U.S. farm workers and workers in upstream and downstream jobs that would 

be displaced by the elimination of the alien farm labor supply would presumably be 

absorbed into the non-agricultural economy, which would be hungry for domestic 

workers to replace the foreign workers to whom they no longer had access. But the 

total volume of U.S. economic activity (and GDP) would have been reduced. And the 

U.S. would be substantially more dependent on foreign suppliers for food. 

Background on the H–2A Temporary Agricultural Worker Program 

The only current program for legally employing foreign agricultural workers in 

the United States is the H–2A temporary agricultural worker program. This program was enacted 55 years ago as a part of the Immigration and Nationality Act 

of 1952. From 1952 until 1986, there was no statutory distinction between temporary agricultural and non-agricultural workers—both entered under the ‘‘H–2’’ 

program. However, almost from the outset the Department of Labor promulgated 

separate regulations governing the requirements for H–2 agricultural and non-agricultural programs, and this distinction was recognized statutorily in the division of 

the H–2 admission category into H–2A and H–2B in the Immigration Reform and 

Control Act of 1986. 

From 1970 through the late 1990’s the number of H–2 and H–2A agricultural job 

opportunities certified fluctuated from about 15,000 to 25,000 annually. In the past 

decade usage has increased substantially, with 59,112 H–2A agricultural job opportunities certified in FY 2006. Many alien workers fill two or more H–2A certified 

job opportunities within the same season, so only about half as many individual H–

2A aliens are admitted each year as the number of job opportunities which are H–

2A certified. 

Despite its recent dramatic growth, use of the H–2A program is miniscule in comparison with U.S. agricultural employment. Fewer than 2 percent of the three million U.S. agricultural job opportunities are H–2A certified, and only about 1 percent 

of the hired farm workforce are H–2A aliens. 

The above statistics underscore that we currently have two agricultural guest 

worker programs operating in this country—a legal guest worker program that fills 

a miniscule 2 percent of U.S. agricultural jobs, and an illegal guest worker program 

that fills at least half, and likely more than 3⁄4, of U.S. agricultural jobs. This situation exists as a result of a cascade of failures—failure of our border control system, 

failure of our system for interior enforcement, failure of our work authorization documentation procedures, failure of our immigration laws to address realistic labor 

force needs, and the Labor Department’s antagonistic administration of the H–2A 

program. 

Benefits and Problems of the H–2A Program 

A legal, workable agricultural guest worker program benefits farmers, alien farm 

workers, domestic farm workers, and the nation. 

It benefits farmers by providing assurance of an adequate supply of seasonal 

workers at known terms and conditions of employment. In an industry where more 

than 80 percent of jobs are seasonal, and a workforce must be reassembled at the 

beginning of every season, it provides assurance that when farmers and their families invest millions in farm production assets, there will be a labor force to perform 

the work. It also promotes continuity, stability and productivity in agriculture. 

17

While there are no official statistics, anecdotal evidence is that 3⁄4 or more of the 

H–2A workforce in any given year are returning workers, and H–2A employers almost universally find that this stable, experienced workforce is more productive, and 

employers can get by with fewer workers than when they are recruiting a new, inexperienced workforce every year. 

A workable guest worker program benefits alien workers by providing a legal, regulated way for aliens to work in the United States in jobs where their services are 

needed. It may surprise Members of the Committee to learn that the pressure on 

employers to participate in the H–2A program often comes from their illegal workers, who pay exorbitant costs to be smuggled into the U.S., often under life threatening conditions, and face fear and abuse while they are here. As H–2A guest workers, they enter legally and work with rights and guarantees. Not withstanding the 

allegations of opponents of the program, H–2A aliens value their jobs, are careful 

to comply with program requirements, and return as legal workers year after year. 

In the words of one former illegal alien whose employer got into the H–2A program, 

‘‘I thank God every day for the H–2A program’’. 

The program also benefits domestic farm workers. It assures open recruitment for 

and access to H–2A certified job opportunities for local and non-local domestic workers who want such work. It assures that U.S. workers have preference in these jobs, 

even if they are already filled by aliens. It provides labor standards and employment 

guarantees that are above the norms for most agricultural jobs and for many rural 

non-agricultural jobs. Equally important, the H–2A program assures the viability of 

the jobs of U.S. workers in the upstream and downstream jobs that are dependent 

on agricultural production in the U.S. 

An adequate supply of legal labor also benefits the nation. Food and fiber are 

basic commodities. It is not in our national interest to be significantly dependent 

on foreign sources for such commodities. However, it is also clearly not in our national interest to have such a basic industry as food and fiber production almost entirely dependent on a workforce which has entered the U.S. and is living and working here illegally and without control. In a mature economy like that of the U.S., 

where the native born workforce is growing at a substantially lower rate than job 

growth, our only policy options are a workable agricultural guest worker program 

or dependence on foreign producers for our food and fiber. 

That is what works about the H–2A program. What often doesn’t work are the 

cumbersome, bureaucratic procedures of the program. Farmers seeking to use the 

program must first apply for a labor certification from the U.S. Department of Labor 

and attempt to recruit qualified U.S. workers. If the employer’s application meets 

the requirements of the Department of Labor and sufficient U.S. workers cannot be 

found, a labor certification is issued. The employer then files a petition with the 

U.S. Citizenship and Immigration Service (USCIS) for the admission of H–2A aliens. 

Meanwhile, a supply of alien workers must be recruited. If the employer’s petition 

is granted, it is transmitted to the U.S. consulate where the aliens will apply for 

visas. The aliens complete visa applications and are interviewed. They must meet 

the same criteria as any other applicant for a non-immigrant visa. The aliens who 

are granted visas then travel to the port of entry and apply for admission to the 

U.S. Those who are admitted travel to the employer’s farm. In order for workers 

to arrive at the by the employer’s date of need, this entire process must take place 

in 45 days. Once the workers arrive, H–2A employers face a barrage of compliance 

monitoring and enforcement officers, outreach workers, social service agencies and 

legal service activists. Nowhere else are so few monitored by so many. Lawsuits are 

commonplace. 

Many employers are daunted by the imposing H–2A administrative processes, and 

simply never try to use the program. Those who do use it must navigate a gauntlet 

of obstacles. Not withstanding statutory performance deadlines, H–2A labor certifications are often issued late and after interminable haggling over the wording of 

application documents. The problem of late labor certifications is compounded by 

processing delays in approving petitions at the Department of Homeland Security 

and in securing appointments for visa applicants at U.S. consulates. During the 

2007 season, the arrival of many H–2A workers was seriously delayed, imposing 

substantial costs and potential losses on employers who are paying a premium to 

do things right and comply with the law. Even brief delays in the arrival of workers 

can be disastrous to producers of perishable agricultural commodities. 

The H–2A certification process is also unnecessarily complicated. Even though 

97.5 percent of H–2A labor certification applications, and 92 percent of the job opportunities on those applications, were certified in FY 2006, it nevertheless required 

an extremely labor intensive, paper intensive process for individually processing, recruiting on and adjudicating every single one of the 6,717 H–2A applications certified. This process is repeated annually, not withstanding the fact that approval 

18

rates have been in the 90 percent range for decades, and the availability of legal 

U.S. workers as a percentage of the need has been in single digits. This repetitious 

and labor intensive process for demonstrating annually that there are not sufficient 

able, willing and qualified eligible (i.e. legal) workers to take the jobs offered for 

each and every application, even when the same labor market is tested multiple 

times a week and month for identical job opportunities, and when the USDOL’s own 

statistics show that more than half of the domestic agricultural workforce is illegal, 

is government bureaucracy at its worst. 

The Need for Reform 

The nation’s agricultural labor policy is in desperate need of reform. Reforms are 

needed in the administration of the H–2A program, the H–2A regulations, and the 

nation’s basic agricultural immigration statutes. 

In August of this year the Administration announced its intent to incorporate Social Security No-Match information into its strategy for immigration enforcement, 

and the rules employers would be expected to follow upon receipt of No-Match notifications in order to protect themselves from charges of knowing hiring or continued 

employment of illegal workers. In recognition of the impact the No-Match regulation 

was likely to have on agriculture, the Administration also promised to make every 

effort to reform the H–2A administrative procedures and regulations in order to 

make it as useable an option as possible for agricultural employers to meet their 

needs for adequate legal labor. 

The National Council of Agricultural Employers has presented the Administration 

with a list of more than three dozen administrative and regulatory actions that need 

to be taken to remove obstacles and bottlenecks in the H–2A program and make 

it reasonably cost competitive for potential users. I understand that the NCAE is 

filing these letters with the Committee in a written statement for the record, and 

I will not reiterate them here. Suffice it to say here that the labor certification process, in particular, is predicated on woefully outdated assumptions with respect to 

the demographics of the U.S. agricultural workforce and labor supply and U.S. agricultural labor markets. This is compounded by a culture of hostility toward the program and program users within the Department of Labor. The H–2A petition adjudication and visa issuance processes are bogged down by the shear volume of other 

work these agencies are mandated to perform. 

Unless the No-Match regulation is blocked by the courts, it will begin having an 

immediate impact on agriculture in the southern growing areas this winter, and its 

effects will quickly march northward with the 2008 growing season. It is imperative 

that the Administration make a good faith effort to quickly implement the administrative reforms, and immediately begin work on regulatory reform. However, it is 

also imperative that Congress realize that administrative and regulatory reform of 

the H–2A program is not enough. Many of the most important long term reforms 

of our broken agricultural labor system can only be made statutorily. The responsibility for these statutory reforms lies squarely with the Congress. 

The Agricultural Job Opportunities and Benefits Act (AgJOBS) 

In 2001 agricultural employers and farm worker advocates and unions achieved 

an historic milestone in negotiating an H–2A reform legislation package known as 

the Agricultural Job Opportunities and Benefits Act, or AgJOBS. AgJOBS has broad 

bipartisan support in Congress as well as among ethnic groups, religious groups, 

and farm worker and agricultural organizations that have historically battled over 

agricultural guest worker policy and procedures. It is intended to address many of 

the economic, justice and administrative problems with the current H–2A program. 

AgJOBS reforms the administrative structure of the H–2A program to make it 

more efficient and more reliable as a source of timely legal labor. It also reforms 

the conditions for use of the program, making it more economically accessible to agricultural employers. It does this in a way that protects U.S. farm workers and 

assures access to agricultural jobs for those who want them. It also protects alien 

farm workers. Finally, it addresses the heavy reliance of U.S. agriculture on a currently illegal workforce by providing a pathway to adjustment of status for illegal 

farm workers that is humane, and which will not cause chaos and disruption in the 

U.S. agricultural economy. 

It is impossible to overstate the significance of the broad support AgJOBS has 

among historic adversaries. AgJOBS has the support of the two major U.S. farm 

worker unions, the United Farm Workers and the Farm Labor Organizing Committee, hundreds of other immigrant advocacy and labor advocacy groups, religious 

organizations, and the overwhelming majority of agricultural employer organizations. 

19

Conclusion 

The United States faces a serious economic, labor market and security challenge. 

The demographics of the U.S. population are such that we are barely replacing the 

existing workforce through native born workers. We are not coming close to producing enough native born workers to meet the requirements of our growing economy. This has been true for more than a decade. Yet our legal immigration policies 

have been largely blind to the labor force needs of the economy. As a consequence, 

we now have millions of persons living and working in the U.S. illegally. And a good 

thing for us that this is so. Our economic growth over the past decade has been sustained and nourished by our failed immigration policies. 

Agriculture has been particularly affected by the shortage of legal native born and 

immigrant workers, for reasons that are obvious on their face. With more available 

jobs than legal workers, the legal workers have migrated to the more skilled, year 

round, more pleasant, urban, higher paying jobs. This is not an indictment of U.S. 

agricultural jobs. It is a reflection of the reality that when there are more jobs than 

workers, the less attractive jobs are more likely to go unfilled. If these jobs were 

not critical to our national economy and security, this would not necessarily pose 

a problem. But when they are in an industry as critical as the food and fiber sector, 

it poses a serious problem. 

It is clear that the status quo—a U.S. agricultural industry almost completely dependent on unauthorized workers who have entered the U.S. illegally, is untenable. 

It is equally clear that ceding U.S. production of food and fiber to foreign producers 

is untenable. Congress and the administration have ignored this problem far too 

long.

Mr. HOLDEN [presiding.] Thank you, Dr. Holt. And on consultation with the Ranking Member, we believe we better adjourn now 

for the votes and return in about 45 minutes. The Committee 

stands adjourned. 

[Recess] 

The CHAIRMAN. The Committee will come back to order. Now we 

are pleased to recognize a good friend and somebody who has been 

a real leader on this issue, bringing this forward all over the country. Mr. Bob Stallman, the President of the American Farm Bureau 

Federation. Thank you, Bob. 

STATEMENT OF BOB STALLMAN, PRESIDENT, AMERICAN 

FARM BUREAU FEDERATION; RICE AND CATTLE PRODUCER, 

COLUMBUS, TX 

Mr. STALLMAN. Mr. Chairman, Members of the Committee, I am 

a rice and cattle producer from Columbus, Texas and President of 

the American Farm Bureau Federation. And thank you for the invitation to testify. This hearing could not come at a more crucial 

time. As I travel around the country, I am constantly asked by 

farmers when is Congress going to fix our labor problem. Of course, 

I can’t answer that question, only you can. 

But I am here today to ask you to find an answer and find it 

quickly. Why is that? Today, agriculture hires about one million 

hired workers. It is the highest proportion in our history, and it 

has been that way for nearly 2 decades, but the stability of that 

labor force is now in doubt. 

The U.S. Department of Labor estimates that at least half our 

workers lack authorization. Some people put that figure much 

higher. Demand for workers is tight and growing tighter. A significant disruption in the supply of workers will increase farmers’ 

costs, put more foreign-grown produce in our supermarkets, 

strengthen our international competitors, weaken our nation’s food 

security, and put many farmers out of business as they lose their 

workers or the costs of labor get beyond their reach. 

20

We shouldn’t let that happen, and I hope you won’t. To those 

who say if you only paid more, we wouldn’t have this problem, I 

say look at the facts. We are paying workers more today than we 

ever have. The average hired farm worker wage in 2005 was $9.50 

an hour. With a benefits package, the average cost per worker was 

in the $11 to $12 an hour range. For farmers who use the H–2A 

Program, labor costs are even higher. And there are ten million 

people working in our economy today who work for lower wages 

than they could get working in the fields. 

To those who say we turn a blind eye to the law, I say look again 

and see what the law makes us do. Go to the U.S. Department of 

Agriculture website today, and you can read for yourself what advice they are giving farmers. To quote from the U.S. Government, 

‘‘employers with four or more employees are prohibited from document abuse. Document abuse occurs when an employer requests an 

employee or applicant to produce a specific document or more or 

different documents than are required to establish employment eligibility or rejects valid documents that reasonably appear genuine 

on their face. Applicants should not be asked where they were born 

or whether they’re legally entitled to work in the United States.’’

Some people say the No-Match rule issued by the Department of 

Homeland Security will fix this. In fact, it won’t. The rule raises 

significant concerns. The DHS rule tells an employer what he must 

do if he wants to avoid having DHS charge him with knowingly 

employing an illegal worker. If he follows the DHS steps but keeps 

the employee, the DHS says it may charge him with breaking the 

law. But if he follows those same steps and discharges the employee, he can be sued by the employee. And DHS says it won’t 

even shield employers from such a result. And this type of legal 

jeopardy is in addition to the threat constantly posed by legal services attorneys who dislike the H–2A Program and are only too 

ready to take farmers to court. 

We all know the law needs to be changed. Farmers know that. 

We support it. Our nation must secure its borders. We must assure 

that those who are working here are entitled to do so, but don’t 

cripple agriculture in the process. Last year, the American Farm 

Bureau Federation released a report, a copy of which is attached 

to our submission, detailing the impact to our sector, if we were to 

lose our current supply of labor. 

Let me highlight just two figures for you. Without a stable, legal 

supply of labor to replace the presence of currently unauthorized 

workers, the fresh fruit and vegetable sector could see U.S. production decline by up to $9 billion a year. Similarly, an abrupt loss of 

our labor supply would cause net farm income to drop by up to $5 

billion annually. We cannot let this problem continue. 

Let me outline five suggestions that should frame your approach. 

One, don’t make matters worse. The No-Match rule issued by DHS 

has the potential to put farmers in legal jeopardy even when they 

follow the regulation. That is wrong. It should not happen. 

Two, do what you can now. The Administration is attempting to 

reform the H–2A Program through regulation to make it more efficient, more responsive, and more readily usable by growers while 

protecting the rights of workers. We urge all Members of Congress 

to support this effort. 

21

Three, face reality. U.S. agriculture depends on migrant labor. 

We all know that. Don’t make farmers check boxes and jump 

through meaningless hoops only to get their workers weeks after 

they need them. Expedite the visa process for guest workers by 

using creative solutions. For instance, we have suggested an expedited process whereby an appropriate entity in a state could certify 

at the start of the year that an agricultural labor deficit exists in 

that state. Such a certification could trigger expedited handling 

and processing of guest workers up to a certain limit. 

Four, take up legislation without delay. We all recognize the difficult issues that arise in the immigration debate. Ignoring them 

will not solve them. Any legislation solution for agriculture must 

be a fair, balanced approach that does provide an opportunity for 

current workers in agriculture to legalize their status while laying 

the foundation for a long-term solution. Above all, we do not want 

a Band-Aid fix that means we will have to revisit this issue in a 

few years. 

And five, don’t let state and local governments fill the void. Immigration is a national issue. Policy should be set in Washington, 

D.C. The longer the issue is left unresolved, the more likely it is 

that we will see states and localities step in to fill that void. We 

need a national policy with national guidelines. Only Congress can 

give us that. 

Mr. Chairman, Members of the Committee, thank you for allowing me to be here today, and I look forward to answering questions. 

[The prepared statement of Mr. Stallman follows:]

PREPARED STATEMENT OF BOB STALLMAN, PRESIDENT, AMERICAN FARM BUREAU

FEDERATION; RICE AND CATTLE PRODUCER, COLUMBUS, TX 

My name is Bob Stallman. I am a rice and cattle producer from Columbus, Texas 

and I am president of the American Farm Bureau Federation. On behalf of Farm 

Bureau, the nation’s largest general farm organization, I want to express my appreciation for the invitation to testify this morning on a topic that is on the minds of 

farmers and ranchers across the country—the critical need in agriculture for a legal, 

stable supply of labor. 

This hearing could not come at a more crucial time. I make frequent trips around 

the country, meeting with producers from every facet of the agricultural community—dairy producers, fruit and vegetable growers, poultry and hog farmers, row 

croppers, nurserymen and others. Because of the nature of agriculture, our labor situation is closely linked with the issue of immigration reform. I do not think there 

is any question I get asked more frequently than: When is Congress going to fix our 

labor issues? 

Of course, I can not answer that question. It is one that only the Members of this 

Committee and your colleagues in the House and Senate can answer. But I am here 

today to ask you—to urge you—to find an answer. We know it is tough. We respect 

the fact that Members from both sides of the aisle, from all over the country look 

at the problem differently. But all of us need to come together, to work through our 

differences, to appreciate one another’s perspective and to find a solution that works 

for our country, for our cities and communities, and for our national security and 

for our economy. 

Nowhere is the problem more acute than in agriculture. In many ways, we are 

on the front lines of this debate. Let me take a moment to share with you a few 

facts—to give you an idea of the reality farmers and ranchers face today. 

Periodically, the U.S. Department of Labor conducts a survey—known as the National Agricultural Worker Survey, or NAWS—that gives a profile of labor in the 

agricultural sector. In the NAWS report, the department stated that in 2001 and 

2002, 53 percent of the hired crop labor force lacked work authorization. (See Figure 1.) Economists at Farm Bureau believe this is probably a lower-bound estimate 

because the figure is based on a response volunteered by individuals to governmentauthorized questioners. In other words, it seems reasonable that at least some indiVerDate 0ct 09 2002 10:21 May 05, 2009 Jkt 041481 PO 00000 Frm 00025 Fmt 6633 Sfmt 6621 I:\DOCS\110-30\48999.TXT SOLEM PsN: REBEKA
22

viduals would not, and did not, volunteer the fact that they were not legally authorized to work. 

Figure 1

Data Source: DOL.

Looking at another government survey, this one from the National Agricultural 

Statistics Service or NASS, which is a part of the U.S. Department of Agriculture 

(USDA), you will get a fuller picture of the employment situation in agriculture. 

After almost a century of shedding excess labor to the rest of the economy, agricultural labor demand stabilized over the last 20 years at about three million workers. (See Figure 2.) This is due to multiple factors, such as increased mechanization, the aging of the farm operator pool, decreasing farm family size, economic opportunities elsewhere in the economy and the continued movement of people off the 

farm. Of the three million workers required to operate the sector, approximately two 

million are drawn from farm families. About one million are hired from non-family 

sources. Thus, pairing NASS labor figures and DOL’s statistic indicating that at 

least 50 percent of hired workers in agriculture are unauthorized, Farm Bureau estimates there are at least 500,000 agricultural workers who lack proper authorization. 

This change in the balance between farm labor supply and demand is reflected 

in increased hired worker wages (See Figure 3.) USDA’s National Agricultural 

Labor Survey indicates the average hired farm worker wage in 1985 was $4.50 per 

hour. By 2005, the wage had increased to $9.50 per hour and included an improved 

benefits package that pushed the average cost up to $11 to $12 an hour. (Please 

note that wages and benefits for H–2A workers are higher.) Compare this with a 

2005 minimum wage of $5.15 per hour and DOL survey results showing starkly different wages in jobs with similar skill requirements, ranging from $6.65 per hour 

for food preparation, $11 per hour for janitorial workers and $14.35 per hour for 

construction labor. 


11030001
23

Figure 2

Data Source: USDA–NASS. 

Figure 3

Data Source: USDA–NASS.

Overall worker numbers and wages do not tell the whole story. Recent quarterly 

labor trends published by NASS paint a more disturbing picture. When considering 

the third quarter—the quarter in which farmers require the most labor—data indicate there has been progressive tightening in the supply of agriculture labor. (See 

Figure 4.) The quarter-to-quarter difference from 2005 to 2006 shows a decline of 

60,000 hired workers. For farmers in need of additional labor, that fact is the story 

behind this hearing today. It demonstrates quite clearly the difficult situation farmers face as they scramble for additional labor in an economy with a relatively low 

unemployment rate and a lack of individuals willing to work in the agriculture industry. 


11030002 11030003
24

Figure 4. Number of Hired Workers in Agriculture by Quarter

Data Source: USDA–NASS.

That trend should be put in perspective by mentioning agricultural production, 

because labor is one of the major inputs for the sector. In recent years, the agriculture sector has realized significant gains in productivity, while enduring a decline 

in the overall agriculture labor force. (See Figure 5.) Productivity gains may be attributed to a number of factors such as better management practices, better technology, and the residual effects of mechanization in previous decades. 

These productivity gains have allowed the United States to meet the strong demand for agricultural products in both domestic and international markets. However, sustaining our current level of productivity is contingent on a stable, reliable 

and legal workforce. America’s farmers have proven time and again they can grow 

two blades of grass where there was only one before—but this requires workers. The 

bottom line is this: a significant disruption in the supply of agricultural workers will 

increase farmers’ costs, put more foreign-grown produce in our supermarkets, 

strengthen our international competitors, weaken our nation’s food security and put 

many farmers out of business as they lose their workers or the costs of labor get 

beyond their reach. 

Figure 5

Data Source: USDA–NASS/ERS.

As you can see, production is up. We are now producing almost 20 percent more 

than we did a decade ago. Demand for our products is high. Labor is tight. Wages 

are rising. 

Some might look at that picture and say, ‘‘What are you complaining about? It 

shows a healthy, robust agricultural sector.’’ But you must put these numbers together with those we discussed earlier from the NAWS survey. 

Remember, the lower-bound estimate for our labor force shows that a significant 

proportion, probably more than half, is not authorized to work. Over the last few 

years, and particularly since 9/11, we have seen a significant change in the nation’s 

response to terrorist threats. That response includes—quite appropriately—tightening our borders to prevent illegal entry. Farm Bureau supports this national efVerDate 0ct 09 2002 10:21 May 05, 2009 Jkt 041481 PO 00000 Frm 00028 Fmt 6633 Sfmt 6621 I:\DOCS\110-30\48999.TXT SOLEM PsN: REBEKA

11030004 11030005
25

fort. First and foremost, we want our nation to be secure. We do not want our laws 

to be ignored. We also want to make sure that the workers we hire are legal. We 

want to be a part of the solution to this problem, because it affects us more than 

most. 

How we make these adjustments is critical. Twenty years ago, Congress substantially revised our immigration laws. They laid down the ground rules that employers 

follow today. We all recognize that those ground rules must change. 

But let me refresh the Members’ recollections about exactly what the current law 

requires. I want to do this for a simple reason. There are some misconceptions that 

have developed into conventional wisdom, but like a lot of conventional wisdom, it 

is wrong. For instance, you often hear the statement that ‘‘if farmers would just pay 

more, we would not have that problem.’’ The statistics I cited earlier clearly show 

that is not the case. Right now, in our economy, there are ten million workers—

over 7 percent of the entire nation’s workforce—who work for lower wages than they 

could make in agriculture. They have made a conscious decision not to work in the 

fields. That is their choice. People should not lose sight of the fact that in America 

today, low wages are not keeping people out of agriculture. 

I want to put another big misconception to rest. Many people believe farmers 

know exactly what they are doing when they hire illegal workers, that they simply 

do not care about the law and that they know perfectly well the individuals they 

hire are here illegally. 

Let me also draw your attention to another government document, this one from 

USDA. It is a website hosted by USDA’s chief economist. I have attached a copy 

of a page from the website to my testimony (Attachment #1), but you and your 

staff can access it easily (at http://www.usda.gov/oce/labor.ina.htm). This page offers advice to farmers on what they must do to comply with the 1986 Immigration 

Reform and Control Act (IRCA). Despite what many people think, farmers simply 

cannot turn away potential workers if they suspect those workers are here illegally. 

To quote the U.S. Government:

Employers with four or more employees are prohibited from committing document abuse. Document abuse occurs when an employer requests an employee or 

applicant to produce a specific document, or more or different documents than 

are required, to establish employment eligibility or rejects valid documents that 

reasonably appear genuine on their face. Employers must accept any of the documents or combination of documents listed on the back of the INS Form I–9 to 

establish identity and employment eligibility. Examples of document abuse include requiring immigrants to present a specific document, such as a ‘‘green 

card’’ or any INS–ISSUED document, upon hire to establish employment eligibility, and refusing to accept tendered documents that appear reasonable on their 

face and that relate to the individual.

* * * * *

Applicants should not be asked where they were born or whether they are legally 

entitled to work in the United States.

Mr. Chairman and Members of the Committee, this is the United States Department of Agriculture advising farmers how to act. Farmers naturally view this as authoritative. Moreover, remember that the farmers we are talking about are not Fortune 500 companies. They do not have in-house legal counsel and a human resources department advising them about what to do. The average fruit and vegetable grower has a gross income that does not even equal the Members Representational Allowance (MRA) each Member of Congress is provided to run their D.C. and 

district offices. Yet, they face these employment situations constantly. The fact is 

a farmer cannot turn away an applicant because the worker does not speak English 

or does not present a green card or appears to lack proper authorization. If he does, 

the farmer can be—and is—sued by legal activists. Farmers and ranchers do not ask 

to be in this situation. But we are in it. It is based on the law Congress passed 21 

years ago. It is up to you to help us get out of it. 

Some people say all this will be fixed by the proposed No-Match rule published 

by DHS. Let me caution you about this regulation. In one fell swoop, the Federal 

Government seems to be making a 180 degree turn on employers. From providing 

farmers with no tools whatsoever to check for legal authorization, they are practically deputizing them as unofficial document checkers for the Immigration and 

Customs Enforcement agency. 

The reality is that we may be in a worse situation after the rule than before it. 

Let me explain. 

Under the DHS rule, employers’ obligations under the law are not changed at all. 

The rule merely provides employers a ‘safe harbor’ from prosecution, provided they 

26

follow a series of steps laid out by the department. In others words, if they receive 

from the Social Security Administration a notice that a name and Social Security 

Number do not match, they have 30 days to identify the cause (for instance, transposition of a letter or number). If the cause is identified, the matter is resolved. If 

not, the employer must approach the employee to ask that the employee rectify the 

matter with SSA. If, after 90 days, the employee maintains that the documentation 

he has provided is correct, then the employer has 3 days in which to re-verify that 

employee with new documentation. If the employee is indeed unauthorized and the 

employer does not follow these steps and discharge the employee, DHS says it may 

impute to the employer ‘constructive knowledge’ that he has knowingly employed an 

illegal worker. 

What should an employer do? If he follows those steps and retains the employee, 

he runs the risk of prosecution by DHS. But if he discharges the employee out of 

fear he will be charged by DHS with a crime, the employee may file a lawsuit 

against the employer for discrimination based on a separate statute. Of course, DHS 

has said it will not shield employers from such a consequence if they take the step 

of discharging the employee, yet DHS’s rules tell them to do so anyway. 

This is a Hobson’s choice for farmers. Last year, when DHS proposed this rule, 

AFBF filed comments with the agency on the problems the rule poses for farmers. 

These problems are real, and they are not yet resolved. I have attached to my statement (Attachment #2) a copy of the comments we submitted to the agency last 

year in connection with this rule. I urge the Members to familiarize themselves with 

these comments because they will affect farmers, and you will be hearing from your 

constituents about it. 

This type of legal jeopardy is in addition to the threat constantly posed by legal 

services attorneys who dislike the H–2A program and are only too ready to take 

farmers to court. Congress needs to reaffirm support for this program and not see 

it killed by a thousand cuts from activists who are pursuing their own agendas. 

There is no question the law must be changed. We must secure our borders. We 

must assure that those who are working here are entitled to do so. But nothing is 

more critical than how we go about this transition. 

Early last year, AFBF released a report prepared by our economists on the impacts to our sector if we were to lose our current supply of labor. A copy of that 

report is included with this testimony as an attachment (Attachment #3). Let me 

highlight just a couple of points because I think they are sobering:

➣ Without a stable, legal supply of labor to replace the presence of currently unauthorized workers, the fresh fruit and vegetable sector could see U.S. production decline by up to $9 billion a year.

➣ Similarly, an abrupt loss of our labor supply would cause net farm income to 

drop by up to $5 billion annually.

Mr. Chairman, these are direct effects on agriculture—in other words, workers directly involved in production agriculture. But indirect effects are also substantial. 

For instance, if the processing plant that is supposed to receive your hogs is raided 

by ICE the day you are supposed to get those hogs to market, this can have a devastating impact on your operations. 

The longer you delay, the more likely it is that states and localities will take matters into their own hands. We are already seeing that across the country. It makes 

it more difficult for farmers to do their business and it strains relations within our 

communities. The only reason we are seeing these initiatives is because Congress 

has not acted and people feel the need to fill the vacuum. That’s not how we’re going 

to solve this problem. 

Farmers need to plan their futures. We have reports that some apricot growers 

have decided not to replant their orchards because they fear the labor will not be 

there. One blueberry farmer in Mississippi has gotten out of the fresh fruit business—even though it is more profitable—because she doesn’t want to deal with 

labor issues. One cooperative has decided that next year it will plant 30 percent 

fewer acres of pickling cucumbers because they simply won’t be able to harvest 

when the time comes. Most disturbingly, The New York Times recently ran a story 

about a farmer who has leased land in Mexico because he is not sure he will be 

able to harvest his crop in the U.S. 

Clearly, agriculture today is desperately in need of a solution to this problem. Let 

me outline a few suggestions that, in our view, can help us through these problems.

1. Do not make matters worse. The No-Match rule issued by DHS has the potential to tighten labor markets further or, even worse, put farmers in legal jeopardy as they follow the law. That is wrong. It should not be allowed to happen.

27

2. Some things can be done now. DO THEM! The existing H–2A program is broken. The Administration recently announced it would attempt to reform the program through regulation to make it more efficient, more responsive and more 

readily usable by growers while protecting the rights of workers. We agree with 

and support this initiative. We are in the process of preparing an exhaustive 

list of recommendations to submit to the administration for its consideration. 

We urge all Members of Congress to support this effort as well.

3. Face reality. U.S. agriculture depends on migrant labor. We all know that. 

Do not make farmers jump through meaningless hoops to prove something that 

we all recognize. Expedite the visa process for H–2A workers by using creative 

solutions. For instance, we have suggested an expedited process whereby an appropriate entity in a state—a Governor, a State Secretary of Agriculture or 

labor, or a combination of the three—could certify at the start of the year that 

an agricultural labor deficit exists in that state. Such a certification could trigger expedited handling and processing of guest workers up to a certain limit. 

By placing such a certification in the hands of a public official, you would build 

in a fail-safe mechanism whereby a state could limit the number of guest workers that receive expedited processing (for instance, when there is a slowdown 

in the state’s economy).

4. Take up legislation without delay. We recognize the difficult issues that arise 

in the context of the immigration debate. Ignoring them, however, will not solve 

them. We urge all Members, from both sides of the aisle and from around the 

country, to put aside partisan or ideological biases with the goal of doing what 

is right for the country. U.S. agriculture simply cannot wait any longer for a 

solution. Any legislative solution for agriculture must be a fair, balanced approach that provides an opportunity for current workers in agriculture to legalize their status and provides a framework for a long-term solution, such as a 

revamped H–2A program, that assures we will not have to revisit this issue in 

the future.

5. Don’t let state and local governments fill the void. Immigration is a national 

issue; policy should be set in Washington, D.C. The longer the issue is left unresolved, the more likely it is we will see states and localities step in to fill the 

void. For example, we should not have a situation under which some states require employers to use E-verify while other states prohibit it. We need a national policy with national guidelines. Only Congress can give us that.

Mr. Chairman and Members of the Committee, thank you for providing me this 

opportunity to testify this morning. I will be pleased to answer any questions the 

Members may have. 

ATTACHMENT #1

IRCA Anti-descrimination Provisions 

Summary 

The Immigration Reform and Control Act of 1986 (IRCA) was enacted to control 

unauthorized immigration to the United States. Under IRCA, employers may be 

sanctioned by the Immigration and Naturalization Service (INS) for knowingly hiring non-U.S. citizens who are not authorized to work in the United States. To address the fear that employers would overreact to the threat of sanctions and discriminate against individuals who sounded or appeared ‘‘foreign,’’ Congress also 

passed IRCA’s anti-discrimination provisions. 

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), Civil Rights Division, U.S. Department of Justice, enforces the anti-discrimination provisions. The OSC investigates and prosecutes employers charged 

with national origin and citizenship status discrimination with respect to hiring, firing and recruitment or referral for a fee, unfair documentary practices concerning 

the hiring process (document abuse), and retaliation under the anti-discrimination 

provisions of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b. The OSC 

may be reached by telephone at 202–616–5594 and 1–800–255–7688. 

Employers with four or more employees are prohibited from discriminating on the 

basis of citizenship status, which occurs when adverse employment decisions are 

made based upon an individual’s real or perceived citizenship or immigration status. 

Examples of citizenship status discrimination include employers who hire only U.S. 

citizens or U.S. citizens and green card holders, employers who refuse to hire 

asylees or refugees because their employment authorization documents contain expiration dates, and employers who prefer to employ unauthorized workers or temVerDate 0ct 09 2002 10:21 May 05, 2009 Jkt 041481 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 I:\DOCS\110-30\48999.TXT SOLEM PsN: REBEKA
28

porary visa holders rather than U.S. citizens and other workers with employment 

authorization. 

Employers with four or more employees are prohibited from committing document 

abuse. Document abuse occurs when an employer requests an employee or applicant 

to produce a specific document, or more or different documents than are required, 

to establish employment eligibility or rejects valid documents that reasonably appear genuine on their face. Employers must accept any of the documents or combination of documents listed on the back of the INS Form I–9 to establish identity 

and employment eligibility. Examples of document abuse include requiring immigrants to present a specific document, such as a ‘‘green card’’ or any INS–ISSUED 

document, upon hire to establish employment eligibility, and refusing to accept tendered documents that appear reasonable on their face and that relate to the individual. U.S. citizens and all immigrants with employment authorization are protected from document abuse. 

The anti-discrimination provisions also prohibit small employers (e.g., those with 

four to fourteen employees) from committing national origin discrimination against 

any U.S. citizen or individual with employment authorization. Larger employers are 

already covered by Title VII of the Civil Rights Act of 1964, which is enforced by 

the Equal Employment Opportunity Commission. In addition, employers may not 

retaliate against workers who file a complaint, cooperate in an investigation or testify at a hearing. 

Requirements 

IRCA requires all farm employers to complete and retain an I–9 form for each 

new hire. Employees are required to complete the first section of the form and provide a document or documents that establish identity and employment eligibility. 

Acceptable documents are listed on the back of the I–9 form. 

Employers are required to complete the second section of the I–9 form and must 

accept the proffered documents if they ‘‘reasonably appear to be genuine on their 

face’’ and relate to the individual. Remember, it is unlawful for an employer to practice ‘‘document abuse’’ by requiring prospective employees to present specific employment documents. 

For purposes of completing tax documentation, employers may ask new employees 

for their social security cards. To avoid allegations of document abuse, the employer 

should do this separate and apart from the I–9 process. 

To avoid potential charges of discrimination, it is recommended that employers 

not initiate the I–9 process until after the decision to hire has been made and communicated to the employee. Applicants should not be asked where they were born 

or whether they are legally entitled to work in the United States. 

Subsequent to employment, an employer who has reason to believe that a fraudulent document has been presented, perhaps as a result of an INS investigation, 

should not terminate the employee without first discussing the allegations with him 

or her. Depending upon the circumstances, the employee can be given an opportunity to provide other documents or additional information for employment 

verification purposes. 

If the I–9 form is a photocopy of an original, be sure to copy both sides of the 

form to provide to newly hired employees and the separate instruction page. It is 

good practice to retain copies of employees’ eligibility documents. But if this is done, 

copies should be made of the documents of all employees in order to avoid charges 

of discrimination. 

Enforcement 

The Office of Special Counsel for Immigration Related Unfair Employment Practices enforces the statute prohibiting employment discrimination under IRCA, and 

has the responsibility for handling complaints against all employers alleging citizenship status discrimination, document abuse, retaliation and, if the employer has 

four to 14 employees, national origin discrimination. The Equal Employment Opportunity Commission handles national origin discrimination complaints against employers with fifteen or more employees. 

Penalties 

Back pay (for lost wages), instatement or reinstatement, etc., may be awarded to 

victims of unlawful discrimination. 

Penalties for discrimination range between $275 and $2,200 for each victim for 

the first offense, $2,200 to $5,500 for the second offense, and $3,300 to $11,000 for 

the third offense. Fines for document abuse range from $110 to $1,100 for each victim. 

U.S. citizens and work authorized immigrants who are victims of workplace discrimination based upon immigration status, national origin discrimination or docuVerDate 0ct 09 2002 10:21 May 05, 2009 Jkt 041481 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 I:\DOCS\110-30\48999.TXT SOLEM PsN: REBEKA
29

ment abuse may file complaints with the Office of Special Counsel for ImmigrationRelated Unfair Employment Practices (OSC) at the U.S. Department of Justice. The 

OSC has multilingual personnel, produces educational materials in up to seven different languages, and provides language services and information in more than 100 

languages via the AT&T Language Line. The OSC may be reached by telephone at 

202–616–5594 and 1–800–255–7688 (toll free) or contacting the U.S. Department of 

Justice, Office of Special Counsel.

Last Modified: 05/16/2006. 

http://www.usda.gov/oce/labor/ina.htm.

ATTACHMENT #2

August 14, 2006

Director, Regulatory Management Division, 

U.S. Citizenship and Immigration Services. 

DHS Docket No. ICEB–2006–0004

Department of Homeland Security, 

111 Massachusetts Avenue, NW, 2nd Floor, 

Washington, D.C. 20529

Subject: Proposed Rule; Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, 71 Fed. Reg. 34281 (June 14, 2006) 

To Whom It May Concern:

The American Farm Bureau Federation (AFBF) appreciates the opportunity to 

offer the following comments on the above referenced proposed rule. 

Under current law, it is illegal for a U.S. employer knowingly to hire or continue 

to employ a person who is not authorized to work in the United States (8 U.S.C. 

§ 1324a). ‘‘Knowing’’ is a term defined in current regulations that goes beyond actual 

knowledge to include that ‘‘which may fairly be inferred through notice of certain 

facts and circumstances which would lead a person, through exercise of reasonable 

care, to know about a certain condition’’ or, in other words, to have ‘‘constructive 

knowledge’’ (8 C.F.R. 274a.1(l)). The proposed rule would further define this second 

category or ‘‘constructive knowledge’’ to provide that employers would become subject to a finding upon failing to take reasonable steps after receiving written notice 

from either the Social Security Administration (SSA) or the Department of Homeland Security (DHS) that a wage report or document does not match agency records. 

The rule also describes a set of ‘‘reasonable steps’’ employer may take to avoid a 

finding of constructive (but not actual) knowledge; employers following the outlined 

steps would obtain a ‘‘safe harbor’’ from prosecution over a finding of ‘‘constructive 

knowledge.’’

AFBF commends DHS for proposing a safe harbor for employers who do not 

knowingly employ unauthorized workers. For more than a decade, the SSA NoMatch notice has raised questions about an employer’s obligations under the employment authorization provisions of immigration law after that employer has taken 

all appropriate steps to verify employment eligibility. U.S. agriculture has repeatedly requested guidance on whether and how an employer is to respond to such a 

notice without putting the employer in legal jeopardy due to the employer’s obligation under anti-discrimination provisions of the same law (8 U.S.C. § 1324b). In 

part, this proposed rule represents an attempt to address those concerns and provide employers with guidelines in hiring and firing decisions. We appreciate DHS 

efforts. Unfortunately, there are a number of situations—many of which are unique 

to the agricultural sector—that may not have been fully considered during development of the safe harbor provisions. With these comments, we identify such situations and strongly urge that the final regulation incorporate our recommended 

changes to ensure that the safe harbor provisions are equally available to all employers and all parts of agriculture. 

Apply the Safe Harbor to Seasonal Employers 

The proposed rule states that employers would be deemed not to have constructive knowledge and thus obtain a safe harbor from prosecution if the employers take 

the following steps in response to a No-Match notice. Upon receiving notice, employers would have 14 days to check records and report to SSA or DHS regarding any 

necessary corrections or, if records cannot be corrected, to instruct the worker to go 

to the local SSA or DHS office to fix the problem. A Social Security mismatch would 

not be resolved until the employer has first verified the new information with SSA. 

If the employee does not return with new or corrected information within 60 days 

of the employer’s receipt of the mismatch letter, the employer then has 3 days to 

30

complete a new Form I–9. When completing a new form, the employer would not 

be allowed to use documents containing the Social Security or alien identification 

number that was subject to the earlier No-Match notice. At the same time, no document without a photograph could be used to establish identity or identity and employment authorization. (71 Fed. Reg. 34285.) 

Our reading of the proposed regulation is that each step would need to be followed 

as spelled out in the rule in order for the employer to become eligible for the safe 

harbor. This is important because while DHS acknowledges that there may be other 

reasonable steps that could lead to a safe harbor, the employer, in following procedures other than the ones outlined in the rule, could ‘‘face the risk that DHS may 

not agree’’ (71 Fed. Reg. 34283). The practical effect of this approach could have a 

significant detrimental effect on seasonal employers and effectively vitiate the protections of the safe harbor for a large segment of agriculture. One set of employers 

should not be given the certainty of a prescribed safe harbor while another is forced 

to define one on a case-by-case basis with DHS approval; seasonal employers should 

not be denied the benefit of safe harbor provisions just because their business is seasonal in nature.

There are several situations, in which an agricultural employer may not be able 

to take all of the required steps to obtain the safe harbor, including:

1. Single season workers. While timing will vary with crop, season, and other 

criteria, seasonal farmers (in the Midwest, for example) generally submit wage 

reports to the IRS (Forms W–2) in February for employees who were employed 

during the previous harvest season and, in most instances, are no longer employed. Should a report on such an employee generate an SSA No-Match notice, 

such a notice in all likelihood would not be sent to an employer until late winter 

or the following spring—well over a year since the individual was employed. In 

many instances, such employees do not return to the original place of employment. For those who do, depending on crop and nature of work, such employees 

would not be re-hired until 14, 60, or 63 days after the employer has received 

the notice. Further, many farm workers may ‘‘follow the crops’’ by migrating 

from state to state, and these workers may not permanently reside locally. Few 

such workers leave forwarding information since the prevailing practice is to 

terminate, not layoff, the worker between seasons. While the employer could 

meet the safe harbor requirement to check his or her records, the employer 

would not be able to meet the other requirements. The employer would not be 

able to reach employees despite making every reasonable effort. We strongly believe that these employers should not be denied the safe harbor for reasons that 

are beyond employer control. Recommendation: We urge DHS to clarify in the 

final rule that the safe harbor extends to employers who, in addition to meeting 

the requirement to check records, can document attempts to reach a former employee who is the subject of a No-Match notice.

2. Off-season workers. As stated in 1. above, some workers listed on a previous 

No-Match notice may not be re-hired until 14, 60, or 63 days after the employer 

has received the notice. Few farm workers leave forwarding information and 

therefore may not be reachable off-season. Recommendation: If an employee who 

is subject to a previous No-Match notice returns in a following season, we would 

recommend that the clock start ticking on the first day of re-hire after receipt 

of the notice. For off-season workers who fail to return in a subsequent season, 

we would offer the same recommendation as stated in 1. above.

3. Short season workers. The duration of a season may vary widely across the 

United States depending on crop and location. For example, in the State of 

Washington, approximately 75,000 migrant and seasonal workers are employed 

each year on small family-owned farms; many of these workers are employed 

for periods as short as 2 weeks. Under these circumstances, an employer may 

be able to check records, ask the employee to confirm those records and in the 

event there are no errors, instruct the employee to follow up with SSA or DHS 

all within 14 days. But, if the employee migrates from crop to crop, there may 

not be an opportunity for the employee to resolve the issue with SSA or DHS 

within the 60 days prescribed by the rule. Once the employee has moved on, 

there would not be an opportunity for the employer to take the next step, which 

is to complete a new Form I–9. Recommendation: The 14, 60, and 63 day periods should toll only while the employee is employed with the employer. For example, if the employee moved on to the next crop on day 15, the clock would stop. 

Upon re-hire in the next season, the clock would re-start and the employee would 

have 45 days (for a total of 60 days) in which to follow up with DHS or SSA 

and report any corrections to the employer. Again, for short season workers who 

31

fail to return in a subsequent season, we would offer the same recommendation 

as stated in 1. above.

All of the above examples pertain to situations in which an employer is not able 

to follow every one of the necessary steps to obtain the safe harbor. The reverse situation could also occur: The employer follows every step outlined in the regulation 

but the No-Match issue is not resolved.

1. Wage Report Mismatch. For I–9 Form purposes, an employee may provide 

documents that do not contain a Social Security or alien identification number—

a birth certificate and driver’s license with a photograph, for example. But because the employer has submitted a Form W–2, the employer may receive a NoMatch notice from the SSA if there are sufficient numbers of mismatches. It is 

not clear from the proposed rule whether the employer could simply re-use the 

same documents on the new Form I–9 in this instance. It is also not clear 

whether the employer would be held liable if the employee writes in Section 1 

of the new form a Social Security Number that is the subject of a notice but 

does not provide a Social Security card. Recommendation: DHS should clarify 

whether an employer would be deemed to have constructive knowledge under 

these circumstances; if so, DHS should specify the employer’s legal obligations 

under immigration law including the anti-discrimination provisions (8 U.S.C. 

§ 1324b).

2. Multiple Season Mismatches. An employer may take every step outlined in 

the proposed rule, up to and including completing a new I–9 Form, yet receive 

a No-Match notice next season. During a 2 week harvest when producers are 

working nearly round the clock to harvest a perishable crop in a short timeframe when every day is precious, it may be difficult for larger seasonal employers (e.g., 500–750 employees) to keep track of every one of the returning employees. Even if the employer recognizes and can keep track of every single 

worker, the rule does not appear to preclude the employer from obtaining the 

safe harbor if the employee keeps responding with new information to each document request. For example, an employee might provide one Social Security 

card the first year which triggers a No-Match notice the following year, provide 

another Social Security card in the second year in response to the original notice which cannot be verified with SSA in 60 days and then provide yet a third 

Social Security card for the new I–9 Form between day 61 and day 63. Recommendation: DHS should clarify whether an employer under these circumstances could still obtain the safe harbor from a constructive knowledge finding. If so, DHS should clarify whether it would deem such employer as having 

actual knowledge of the worker’s unauthorized status.

Many farmers hire and pay an independent contractor to provide workers during 

the season, with the understanding that the contractor will be the employer for all 

purposes, including employment eligibility verification. Yet the Department of Labor 

could determine that both the farmer and the contractor are ‘‘joint employers’’ under 

the Fair Labor Standards Act (29 U.S.C. § 201 et seq.) or the Migrant and Seasonal 

Agricultural Worker Protection Act (29 U.S.C. § 1801 et seq.). However, it is not 

clear from the rule whether the farmer or the contractor would have to obtain the 

safe harbor to avoid prosecution. Recommendation: DHS should clarify the employer’s obligations under immigration law relative to the agricultural joint employment 

standards.

Some seasonal agricultural employers hire non-immigrants with a temporary 

work authorization (e.g., under the H–2A program) or immigrants with permanent 

work authorization. The proposed rule expressly identifies a ‘‘labor certification or 

application for prospective employer’’ as information that could prompt a constructive knowledge finding. But while the rule would describe the steps for an employer 

to take upon receipt of written notice from SSA or DHS over a wage report or document, it does not include any steps for a labor certification. An employer should not 

be denied the certainty of a prescribed safe harbor just because the employer hires 

a worker requiring a labor certification. Recommendation: DHS should specify a safe 

harbor for employers of workers requiring a permanent or temporary labor certification.

Apply the Safe Harbor to Hiring Decisions 

In the notice of proposed rulemaking, DHS expressly states that following the safe 

harbor requirements ‘‘will eliminate the possibility that DHS . . . will allege, based 

on the totality of relevant circumstances, that an employer had constructive knowledge that it was employing an alien not authorized to work in the Unites States’’ 

32

(71 Fed. Reg. 34282). However, it is not clear whether the safe harbor would also 

apply to hiring decisions. 

As outlined above, there are several reasons why an employer would be prevented 

from meeting all of the steps necessary to obtain the safe harbor. A good example 

is when the worker quits: some employees, when confronted with the No-Match notice, will quit without offering a reason. The employer would have checked his or 

her records and found no errors, meeting the first step. He or she may be asking 

the employee to confirm records or instructing the employee to follow up with SSA 

or DHS, which is the second step. Nevertheless, the employee would fail to respond 

within 60 days (the third requirement), and the employer would not be able to comply with the final requirement to fill out a new I–9 Form within 63 days. 

While we are confident that DHS would not prosecute this employer for continuing to employ the worker (after all, the employee quit in this instance), there 

is still a question as to whether the employer’s receipt of the No-Match letter would 

still be grounds for a finding that the employer had constructive knowledge of hiring

an unauthorized worker. A reasonable person might infer from the worker quitting 

that the worker is avoiding detection as an unauthorized worker. 

However, we do not believe a constructive knowledge finding can or should be imputed to an employer merely based on the fact that the employer has received a 

No-Match notice. Because the worker did not offer a reason for quitting, the employer could not have actual knowledge that the worker quit to avoid detection. And 

if the employer had properly completed the Form I–9, the employer would not have 

reason to suspect that the employee was not employment eligible. 

Recommendation: We recommend that DHS clarify that the safe harbor would 

apply to previous hiring decisions under these circumstances.

Extend the 14 and 60 Day Deadlines 

Under the proposed rule, upon receiving notice employers would have 14 days to 

check records and report back to SSA or DHS or instruct the worker to follow up 

directly with SSA or DHS. If the employee does not return with corrected information within 60 days, the employer would then have 3 days to complete a new Form 

I–9. (71 Fed. Reg. 34285.) 

In the agricultural sector, more than 90 percent of operations are family owned 

and operated. The size of the operation may vary from a single hired worker up to 

500 or more workers. Some operate year round while others plant, cultivate or harvest during seasons that may range from as few as 2 weeks to as many as 48 weeks 

a year. For example, in Washington, where there are approximately 75,000 seasonal 

and migrant workers employed each year on small family farms, many are employed 

for periods as short as 2 weeks. At a typical operation, one office person will hire 

more than 100 workers at one time. 

On the farm, the grower’s spouse often constitutes the ‘‘Human Resources Department’’ and the spouse may not work full time. Access to a computer or to a local 

branch of SSA or DHS may be limited in more remote areas of the country. Mail 

may not be processed at a frequency greater than once a week or the notice might 

arrive when the grower is off-season, on vacation or at a trade conference. While 

employers with a dedicated H.R. department and staff may be able to check and 

correct records or notify the employee within 14 days, not every agricultural employer would be able to do so. Recommendation: We recommend extending the timeframe for the first deadline (in which an employer must check, correct or inform) to 

at least 30 days.

Similarly, 60 days may be too short a time period for farm workers to comply with 

the second requirement (to respond with new or corrected information). On a grape 

farm in New York State, for instance, the workers are working nearly round-theclock for about 2 months in the spring and about 3 months solid in the fall between 

harvest, crushing, fermenting, and subsequent ‘‘cellaring.’’ Asking them to take a 

long time out to drive to the nearest SSA office may not be completely practical. 

Recommendation: DHS should extend the second deadline to at least 90 days.

Address Discrimination Issues 

The current regulatory definition of ‘‘knowingly’’ includes the following provision:

‘‘Nothing in this definition should be interpreted as permitting an employer to 

request more or different documents than are required under [8 U.S.C. 

§ 1324a(b)] or to refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual.’’ 8 C.F.R. 274a.1(l)(2).

In the proposed rule, DHS adds a clause to this provision to exclude documents 

that are subject to a No-Match notice: ‘‘, except a document about which the employer has received a notice described in paragraph (l)(1)(iii) of this section and with 

33

respect to which the employer has received no verification as described in paragraph 

(l)(2)(i)(B) or (l)(2)(ii)(B).’’ The proposed rule would not address the anti-discrimination provisions under Title VII of the 1964 Civil Rights Act (‘‘Title VII’’) (42 U.S.C. 

§ 2000e–2). 

AFBF applauds DHS for attempting to provide employers with some certainty in 

their hiring and firing decisions, beyond the limited protection afforded by completing an I–9 Form. Under current law, an employer who is not sufficiently aggressive in examining documents would run the risk of violating the employment authorization provisions of immigration law (8 U.S.C. § 1324a). But, by being too aggressive, the same employer would run the risk of violating the anti-discrimination 

provisions in the same law, and there have been more growers charged with discrimination under the immigration law than with employer sanctions. Excluding 

No-Match documents from anti-discrimination provisions would make it much easier 

for employers to meet the employer authorization provisions. 

However, AFBF strongly urges DHS to make whatever changes to the proposed 

rule necessary to ensure the rule will not lead to additional discrimination lawsuits 

under Title VII. For decades, agriculture has been plagued with nuisance suits, the 

purpose of which has been not necessarily to win on the merits but to outspend the 

grower so as to make an example for the wider agricultural community. If the legal 

and social costs are high enough, farmers will settle instead. The questionable tactics of these lawyers have been well documented in Rael Jean Isaac’s Harvest of Injustice (please see http://www.nlpc.org/harvest.asp). For a more recent example, 

please see Malacara v. Garber (5th Cir. December 9, 2003) (LSC-funded lawyers 

sued a 70-year-old Ohio vegetable farmer under a Federal law that did not even 

apply to small family farmers; the farmer won in lower court and at appeal but it 

cost him more than $100,000 of his hard-earned money to prove the complaint 

lacked merit.). If history is any indication, we would expect activist attorneys to test the boundaries of the proposed rule in court, and agricultural 

employers are the most likely test subjects; agriculture should not have to 

pay additional legal expenses because the proposed rule fails to address 

considerable legal issues.

There also may be legal arguments against the rule in its proposed form. 

For example, the Tenth Circuit Court of Appeals in Zamora v. Elite Logistics, Inc.

(10th Cir. June 6, 2006) recently reversed a lower court decision for the employer 

and let a Title VII national-origin claim go to a jury. The employer was acting on 

a tip he could have received from DHS (i.e., an employee was using a Social Security 

Number for I–9 Form purposes that another had used multiple times in another 

state). He responded by taking precisely the step required to qualify for the safe 

harbor (i.e., the employer requested another document). The safe harbor would not 

protect employers from Title VII. And all some lawyers need is an argument, not 

even a strong one, to compel growers to settle. If DHS does not adequately address 

these issues, it will defeat the purpose of the proposed rule, which is to facilitate 

compliance with 8 U.S.C. § 1324a. 

Clarify Whether Name Or Number Trigger Constructive Knowledge Finding 

Employers would be subject to a constructive knowledge finding if failing to take 

reasonable steps upon receiving written notice from SSA that the ‘‘combination’’ of 

name and Social Security Number does not match agency records. But SSA has sent 

several forms of the No-Match letter in the past; one takes the form of a simple list 

of numbers with no corresponding identifying names. If the employer receives this 

form of the letter, one could not conclude that the name also mismatches agency 

records. It appears that both the name and the number must not match to become 

subject to the rule. Recommendation: DHS should clarify precisely what is meant by 

a ‘‘combination’’ mismatch.

Apply the Final Rule Prospectively 

The proposed rule does not stipulate when the regulation would apply to employers. Given the many resource and other issues that are unique to agriculture, we 

would not support applying the rule on a retroactive basis. Recommendation: DHS 

should apply the rule prospectively from its effective date.

Delay the Final Rule Pending Congressional Efforts 

Both the U.S. Senate and House of Representatives have approved separate legislation (S. 2611 and H.R. 4437) that would address many of the same issues addressed in this proposed rule and reform of this part of the law is a high priority 

for the Administration. Thus, it is possible that there may be new law respecting 

exactly these matters before the end of the year. Farmers do not want to be in position of having to change their operating procedures twice—once to accommodate this 

proposed rule and once again to accommodate a subsequent rule prompted by a new 

34

1The term ‘‘migrant labor’’ as used in this report refers to foreign-born workers who travel 

to the U.S. for employment in the agricultural sector. The report does not consider migrant labor 

working in agriculture-related industries such as the livestock slaughter and packing industry. 

This definition is consistent with the definition used in USDA survey activities but differs from 

the definition of migrant labor (any and all workers who routinely move to different work sites) 

used in the Department of Labor survey activities and reporting. 

immigration law. Employers require certainty in Federal regulations in order to continue to grow and thrive. 

While we recognize that employers need not use the safe harbor, if employees are 

not able to present documents consistent with the proposed rule, employers will be 

compelled to terminate those workers or risk a constructive knowledge finding and 

prosecution. AFBF has conducted an extensive economic study of the immigration 

impacts on agriculture. The study shows that of all the sectors of the U.S. economy, 

domestic agricultural production could be most severely and disproportionately affected on the order of $5 to $9 billion annually if labor restrictions take effect before 

growers have access to an adequate legal workforce. Federal surveys suggest that 

between a high percentage of agriculture’s hired workforce may lack proper documentation, and we have already mechanized to a large extent. We would somehow 

have to replace those workers at a time when few Americans have shown a willing 

to take farm jobs. The impact of this proposed rule could be devastating, prompting 

many farmers to raise their prices at a time when the United States is opening its 

produce markets to significant foreign competition under North and Central American Free Trade Agreements. 

Recommendation: We strongly urge DHS to postpone further action on a final regulation until Congress acts on this issue.

Conclusion 

AFBF appreciates the opportunity to comment on this proposed rule and would 

be happy to assist you in any way we can. Please feel free to contact me or Austin 

Perez at 202–406–3669 (austinp@fb.org) if you have any questions or require additional information. 

Sincerely,

MARK MASLYN, Executive Director, 

Public Policy. 

ATTACHMENT #3

Impact of Migrant Labor Restrictions on the Agricultural Sector 

American Farm Bureau Federation—Economic Analysis Team 

February 2006

Preface 

This report assesses the impact on U.S. agriculture of eliminating access to migrant farm labor.1 The report concludes that the agricultural sector would suffer significant economic losses if the law that governs the hiring of migrant labor were 

changed without providing for a viable guest worker program and a reasonable transition into such a program. 

I. Introduction/Summary 

Of all the major sectors of the U.S. economy, agriculture is the most dependent 

on migrant labor. After almost a century of transferring excess labor to the rest of 

the economy, agriculture’s demand for labor has stabilized at approximately three 

million workers. Of these three million workers required to operate the sector, approximately two million are drawn from farm families and about one million are 

hired from non-family sources. An estimated 500,000 or more of this one million 

would be affected by restrictions on the hiring of migrant labor. 

This report concludes that if agriculture’s access to migrant labor were cut off, as much as $5–$9 billion in annual production of primarily import-sensitive commodities most dependent on migrant labor would be lost in the short term. Over the 

longer term, this annual loss would increase to $6.5–$12 billion as the shock worked 

its way through the sector. This compares to an annual production average for the 

entire agricultural sector of $208 billion over the last decade. 

Production of fresh fruits, vegetables, and nursery products would be hit hardest 

as 10–20 percent of output would shift to other countries, and increasing the U.S. 

trade deficit on virtually a dollar-for-dollar basis. A fifth to a third of production for 

the fastest growing fresh component of the fruit and vegetable market would be lost. 

35

An adequate labor force is critical to the economic health of our fruit and vegetable 

industry. Fruit and vegetable production is labor intensive and producers are already confronted with competitiveness issues due to low cost labor available in competing markets. 

Costs would rise and production would fall in the other field crop and livestock 

sectors which are not as sensitive to imports or as dependent on migrant labor. With 

higher costs, these farm operators would produce a smaller volume of products ranging from grains, oilseeds and cotton to meat and milk. However, with labor accounting for a smaller share of costs, the drop in production would be more limited than 

in the fruit and vegetable sector. In addition, with the U.S. a major exporter rather 

than importer of most of these products, import displacement would be minimal. 

Hence, most of the impact on field crop and livestock operations would be concentrated in higher costs on remaining production. 

The impact of this combination of lower production and higher costs on the farm 

sector as a whole would be a $1.5–$5 billion loss in farm income in the short term 

and a $2.5–$8 billion loss in the longer term (Table 1). The drop in production would 

reduce market receipts and net farm income. With farmers being price-takers rather 

than price-makers, much of the increase in production costs would also have to be 

paid for out of farm income. Aside from the specialty crop sector, this combined farm 

income impact would be most pronounced in livestock operations (such as dairy) 

where structural changes have increased dependence on hired labor. In dairy and 

many other livestock categories, the typical farm family workforce has simply become too small to operate enterprises large enough to capture economies of scale. 

These losses compare to a sector income average of $56 billion per year over the 

last decade. 

Table 1. Losses in Farm Production and Income With the Elimination of Migrant 

Labor

Adjustments would have to be made in all of the states (Table 2). However, adjustments would be largest in California, Florida, Washington, Oregon, Texas, North 

Carolina, Michigan, Idaho, Arizona, and New York. States with extensive fruit, vegetable, and nursery operations and large industrialized livestock operations would 

be the most severely impacted. But the majority of commercial field crop operations 

has grown large enough to need hired labor and would also face considerable adjustment challenges. 

The reason for these losses is simple. There is no readily available pool of excess 

labor in the farm sector, the rural economy, or the general economy to draw upon 

to replace 500,000 or more migrant workers. The sector has already exhausted most 

on-the-shelf mechanization alternatives and next-generation robotics are decades 

away. Hired farm worker wages would have to increase significantly above and beyond the increases necessary over the last 2 decades to attract and hold workers 

in an increasingly tight labor market. This effort to replace lost migrant farm workers would be complicated by the demanding and often seasonal nature of many 

hired jobs in agriculture. It would be further complicated by similar efforts by employers in other sectors of the economy affected by migrant worker restrictions to 

attract and hold their own replacement workers. At a minimum, hired farm worker 

wages would have to increase from the current $9.50 average to possibly $11 to $14 

per hour or more in order to attract and hold labor currently employed in other jobs 

requiring comparable skills. 


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36

2The two most important sources of data are the National Agricultural Labor Survey (NALS) 

conducted by USDA’s National Agricultural Statistics Service and the National Agricultural 

Workers Survey (NAWS) conducted by the Department of Labor. 3 USDA’s farm income information is available at www.ers.usda.gov/data/FarmIncome and 

www.usda.gov/data/ARMS while the Census of Agriculture data is available at 

www.nass.usda.gov/census.

The analysis reported here draws on farm labor data developed by USDA and the 

Department of Labor (DOL) and basic labor supply and demand relationships to estimate the wage impact of replacing lost migrant labor.2 The analysis then uses 

farm income accounts developed by USDA as part of the income reporting program 

as well as Census of Agriculture data on the distribution of farm income to estimate 

sector vulnerability to higher labor costs.3 The relationships built into the agricultural sector model developed at the University of Missouri’s Food and Agricultural 

Policy Research Institute (FAPRI) were then used to estimate farm economy impacts. 

The main body of this report looks first at the changing supply and demand for 

hired farm labor. The second section looks at several of the factors driving farm 

labor demand. The third section looks at the impact of bidding for hired farm labor, 

and the fourth section looks at mechanization as a possible answer to labor shortages. The report then looks at the key components of a viable guest worker program 

from an agricultural economic perspective. The report closes with a methodology 

section.

37

Table 2. State Impacts of Migrant Labor Reduction


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38

II. Changing Supply and Demand for Hired Farm Labor 

In the mid-l980s, after almost a century of transferring surplus labor to the rest 

of the economy, the farm labor market shifted into balance, with the supply of readily available labor roughly equal to the labor needed to operate the sector. Figure 

1 makes this point drawing on USDA data collected as part of its agricultural labor 

survey activities. As recently as the l960s and l970s, the farm workforce declined 

by 100,000–200,000 workers per year. From l985 forward, however, the sector has 

operated with a more or less steady workforce of just under three million. About 

two million of these workers come from within the farm sector and include farm operators and their family members. About one million are hired from non-family 

sources.

The current two million farm family workers is an all-time low and reflects several demographic factors including the size and aging of the farm operator pool, decreasing farm family size, and the continued movement of people off the farm. As 

recently as 1960, the farm family workforce was over five million. Since then, however, Census of Agriculture data indicate that the farm operator pool has steadily 

decreased in size and has aged as fewer beginning farmers have entered the pool 

and the proportion of farmers at or past retirement age has hit successive all-time 

highs. 

The Census Bureau’s population estimates indicate that average farm family size 

has also decreased sharply over this same period, reflecting both a general trend 

in the overall population and the fact that older farmers generally have fewer family 

members to draw on in operating the farm. In addition, the Census Bureau’s population estimates show that the farm population continued to shift to jobs elsewhere 

in the rural economy or the urban sector. Combined, these factors translate into the 

smallest family farm labor pool on record. 

In absolute terms, the labor force hired to augment farm family labor has also 

declined over time. As many as two million hired workers (less than a fourth of the 

total) were drawn from the rural economy as recently as the l960s. Since 1985, the 

number has stabilized at the current level of one million. Measured as a share of 

the total farm workforce (1⁄3), this figure is at an all-time high. 

This change in the balance between farm labor supply and demand has been reflected in increased hired worker wages (Figure 2). USDA’s National Agricultural 

Labor Survey indicates that the average hired farm worker wage in l985 was $4.50 

per hour. This was close to the minimum wage in effect for the general economy 

and included a very limited benefits package. By 2005, the wage had increased to 

$9.50 per hour and included an improved benefits package that pushed the average 

cost up to $11–$12 an hour. This compares with a 2005 minimum wage of $5.15 

per hour and DOL survey results showing wages in representative jobs with similar 

skill requirements ranging from $6.65 per hour for food preparation to $11 for janitorial workers and $14.34 for construction labor, according to DOL surveys.


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III. Factors Driving Farm Labor Demand 

This farm sector demand for three million workers reflects several factors. The 

long-standing substitution of capital for labor reduced the demand for labor. Sustained increases in labor productivity allowed farmers to operate with less labor. 

Offsetting this, however, were changes in consumer demand, farm structure, and 

farm size that worked in reverse to increase demand for labor. 

For example, consumer demand for farm products has changed dramatically since 

l985. The change has been especially pronounced in the fruit and vegetable sector, 

where demand for fresh products has increased from 30–45 percent of an expanding 

produce consumption total (Figure 3). Where possible, growers have met this demand using existing resources—particularly machinery resources. However, the 

fresh market puts a premium on top quality, peak ripeness and visual appeal. This 

limits the extent to which functions such as picking and packing can be mechanized. 

Existing mechanization technology often cannot meet added technical concerns such 

as lack of uniform maturity, incomplete fruit removal, and differences in readiness 

criteria common in the specialty sector. Simply stated, human dexterity and judgment are necessary in the fresh produce sector. 

This dependence on labor is reflected in produce costs and prices. Fresh fruits and 

vegetables meeting stringent consumer expectations can receive a 50–100 percent 

premium over produce used for processing. However, hired labor costs for operations 

specializing in production for the fresh market also range from 1⁄3 to over half of 

the total cost of production. This compares to an agricultural sector labor cost average of 14 percent.

Structural changes in the livestock and field crop sectors have also reinforced dependence on hired labor. These changes—the so-called ‘‘industrialization’’ of agriVerDate 0ct 09 2002 10:21 May 05, 2009 Jkt 041481 PO 00000 Frm 00043 Fmt 6633 Sfmt 6621 I:\DOCS\110-30\48999.TXT SOLEM PsN: REBEKA

11030009 11030010
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culture—have brought technological advances that have meant new ways to produce 

and market farm products. Increasingly, farms using the latest technology in the 

livestock sector simply require more labor than a farm operator family can generally 

provide. 

For example, the typical dairy farm identified in the Agricultural Resource Management Survey conducted by USDA’s Economic Research Service (ERS) reported 

spending $21,000 on hired labor as recently as l995 (Figure 4). However, the same 

operation spent $40,000 in 2004 as machinery operation and livestock management 

jobs grew more demanding. While relatively slower, growth in dependence on hired 

labor in the field crop sector has been significant as more mechanized operations 

require more labor to run high-cost machinery than most operators can provide. 

Looking more broadly across the entire agricultural sectors, growth in the average 

size of farm enterprises indicates that commercial production has simply outgrown 

family labor. The typical commercial enterprise (i.e., farms selling more than 

$100,000 in products per year) increased from sales of about $335,000 per year to 

over $480,000 over the last decade. Supplementing this USDA survey data with 

Census of Agriculture data suggests size in the mid-l980s was below $275,000. 

These farms produce about 85 percent of the sector’s output and account for an 

equally large share of labor. In a growing number of cases, even after adjusting for 

inflation, these operations are simply too large to operate with family labor alone 

(Figure 5).

Meeting this hired labor need has become an increasingly demanding part of farm 

management. Reference has already been made to the declining farm family workforce. Changing demographics have also made it difficult to attract and hold a hired 

farm workforce. As Figure 6 indicates, unemployment in the broader rural economy 

has been low and is currently near what is commonly viewed as a 5 percent strucVerDate 0ct 09 2002 10:21 May 05, 2009 Jkt 041481 PO 00000 Frm 00044 Fmt 6633 Sfmt 6621 I:\DOCS\110-30\48999.TXT SOLEM PsN: REBEKA

11030011 11030012
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tural minimum. Rural unemployment has been lower than the current rate (5.3 percent) in only 4 of the past thirty years. There are fewer rural workers available for 

farm work today than there have been in nearly all of the last 3 decades.

The potential for drawing on urban workers is also limited. The urban unemployment rate is comparable to the rural rate and is also near structural minimums. 

Moreover, farm employment is typically located too far from cities where the number of individuals unemployed is high, even if unemployment rates are roughly comparable. The Census Bureau’s population data on employment indicate that urban 

workers have historically been hesitant to relocate to rural areas. Even farm operators located closer to urban areas report difficulty in drawing the urban unemployed 

to farm jobs. Hence, there is no easy way to fill farm jobs with the urban unemployed. 

Perhaps even more telling, however, is the fact that farm jobs are difficult to fill 

with either the rural or urban unemployed given the nature of the work involved. 

This is particularly true in the fruit, vegetable and nursery sector where approximately half of hired workers are employed and where the work requires difficult 

manual labor. Nor is it a ‘‘job’’ in the conventional sense that some take it to be. 

The work at any one location can be temporary, and sustained employment often 

requires the willingness and ability to move from site to site over a broad area and 

work for more than one employer, coinciding with the crop-harvesting calendar. But 

even site-specific jobs in the livestock and field crop sectors are difficult to fill despite the significantly lower wages that the DOL reports for jobs elsewhere in the 

economy with comparable skill requirements. 

IV. Bidding for Hired Labor 

In this setting of balanced farm labor supply and demand, a change in Federal 

law that effectively cuts off farmers’ access to migrant labor would necessarily force 

the agricultural sector to bid in the general economy for replacement workers. While 

there is no precise count of the migrant workers that would be affected, DOL’s National Agricultural Worker Survey suggests that 500,000—50 percent of agriculture’s hired workforce—would be affected. Other, less formal, counts put the 

number affected significantly higher. 

How high agriculture would have to bid to replace this large a share of its workforce would depend on labor supply and wages in the general economy for jobs with 

similar skill requirements. DOL surveys of wages and employment identify large 

pools of workers and the average wages for these pools. Figure 7 shows representative pools and wages for a range of jobs with skills comparable to those typically 

required of hired farm workers. 

The DOL surveys indicate that the number of workers now employed in food preparation at wages averaging $6.65 per hour far exceed the number that would be 

needed in agriculture. As already noted, farm wages average $9.50 per hour. Food 

preparation workers could raise their earnings today by switching to farm employment, yet very few do. Agricultural employers have not been able to enlist these 

workers in farm employment, and that fact is buttressed by widespread, anecdotal 

reports from farm operators about recruitment difficulties. In short, the perception 

of farm jobs is such that a large segment of the native worker population apparently 


11030013
42

prefers to take lower paying food preparation jobs rather than higher paying farm 

jobs.

DOL surveys indicate that there are two other representative pools of workers 

that are large enough and the skill requirements comparable enough that they could 

supply agriculture’s replacement needs: a janitorial classification with wages averaging $11 per hour and a construction laborer classification with wages averaging 

$14.35 per hour. With workers in lower paying jobs such as the food preparation 

classification choosing not to work in agriculture, farm operators would have to bid 

for workers in these higher-paid categories to replace migrant workers. This would 

entail raising wages from the current average of $9.50 to possibly $11–$14 per hour. 

While there are more than enough workers in the janitorial category with $11 per 

hour wages to fill agriculture’s replacement needs, several considerations suggest 

that replacement wages would have to tend toward the upper end of this $11–$14 

range. First, the number of replacement workers needed would be large compared 

to the number of workers in this pool. Many workers in this pool would likely choose 

to stay in their current jobs. This suggests that agriculture would have to be prepared to tap the higher paid construction worker pool. This replacement effort would 

be complicated by the fact that, as already noted, farm work is often perceived as 

less desirable work. 

Second, employers in these higher wage pools would likely respond to any significant loss of labor to agriculture with wage increases of their own to maintain their 

workforce. Equally important, these other sectors also employ migrant workers and 

would be affected by hiring restrictions. Hence, they would face the same replacement pressure—albeit less acutely than agriculture given the smaller proportion of 

migrant labor in their overall workforces—as farm operators. 

As Figure 8 indicates, this broader pressure to find replacement workers would 

tend to drive up wages generally. Theoretically, the labor supply curve describing 

the number of workers available at specific wages would shift up and to the right. 

This means that, all other factors constant, the cost of the same number of workers 

providing the same services would be higher even before a specific sector such as 

agriculture moved to attract workers from elsewhere in the economy.


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The impact of increasing the average hired wage from $9.50 into this $11–$14.35 

per hour range on the sector would vary depending on producers’ use of migrant 

labor. As already noted, half of this replacement labor would be demanded by fruit, 

vegetable and nursery producers, particularly for fresh produce operations. This dependence on migrant labor combined with their exposure to imports suggests that 

the greatest impact would be in this sector. 

USDA’s Agricultural Resources Management Survey provides a snapshot of the financial health of these fruit, vegetable, and nursery producers and an indication of 

the impact a significant increase in labor costs would have. Surveys from 2003 indicate that, on average, about 10 percent of producers in the specialty crop category 

are financially vulnerable (Figure 9). That is, these producers report negative farm 

incomes and debt-to-asset ratios over 40 percent. They are currently generating too 

little revenue to pay all of their bills and have essentially borrowed what most 

banks will lend on farm assets. 

USDA’s farm income records and farm financial analysis indicate that, historically, operations in this category are most dependent on continuation of the status 

quo—in this case continuation of a $9.50 wage. However, while operating at the 

margin, these producers supply a significant share of sector production. And with 

year-to-year developments in weather and local marketing circumstances, producers 

can shift in and out of this category over time. 

With migrant labor eliminated and replacement labor costs up 16–51 percent, the 

situation would worsen significantly for these vulnerable producers. Fresh fruit and 

vegetable producers most dependent on hired migrant labor would be the most severely affected. However, the rest of the specialty crop sector would also face sharp 

cost increases. We expect that the 11 percent of fruit, vegetable and nursery producers who fall into this ‘‘vulnerable’’ category would ultimately fail with the replacement of $9.50 per hour labor with $11–$14 per hour labor (Figure 9).


11030015
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A significant increase in labor costs would also pull some share of producers who 

are not vulnerable with $9.50 per hour labor into the vulnerable category with $11–

$14 labor. USDA research on farm financial vulnerability and Census of Agriculture 

data on the distribution of farm income suggest that raising wages to $11 per hour 

would move an additional 2 to 3 percent of fruit, vegetable and nursery producers 

into this vulnerable category (Figure 10). The same data indicate that raising wages 

to $14.35 would likely put another 10 percent of these producers in this vulnerable 

category (Figure 11). 

It is important to note that this 10–20 percent loss would be for the fruit and vegetable sector as a whole. A fifth to a third of the fastest growing fresh fruit and 

vegetable component would be affected as production shifted abroad.


11030016 11030017
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Since the loss of migrant labor would be permanent, these newly vulnerable producers would eventually go out of business as their losses accumulate and their borrowing options are exhausted. In short, while they would likely continue operating 

with a reasonably open labor market setting wages at $9.50 per hour, they would 

not be able to continue operating with a closed labor market generating $11–$14 

wages. 

The loss in U.S. production would be roughly comparable with the loss of producers. USDA vulnerability research suggests that smaller producers make up a 

larger share of at-risk farmers. In this case, however, the challenge of finding replacement labor would tend to favor small producers. Small producers could, in theory, improvise by using overtime family labor, part time laborers or local replacement workers to a greater extent than larger operators faced with a much larger 

labor deficit. Hence, migrant labor restrictions would pull larger producers into the 

vulnerable category and keep the drop in production and producers roughly comparable. 

The resulting loss of $5–$9 billion in fruit and vegetable production reflects not 

only wage increases but also the availability of large replacement supplies of fruits 

and vegetables from outside the U.S. The rapid growth in imports over the last decade indicates the readily available supply of foreign fruit and vegetables with U.S. 

farm wages at the current $9.50 per hour (Figure 12).

Restricting migrant workers could well enhance foreign competitiveness even 

more than the increase in U.S. costs and expand the share of producers in the vulnerable category more than estimated here. Mexico, the chief U.S. supplier of specialty products, could well see its costs of production decrease as several million migrant workers were locked out of the U.S. and had to find employment at home. 

Surveys of Mexican fruit and vegetable production costs suggests that labor is the 


11030018 11030019
46

4 Note: For example, the $1.5–$5 billion in short term income loss assumes that $4 billion out 

of the $5–$9 billion in lost production would have generated no income and that the income loss 

on the remaining $1–$5 billion ($5–$9 billion minus $4 billion) would be $250 million to $1.25 

billion. The $2.5–$7 billion in higher costs translate into $1.25–$3.5 billion in income loss, assuming farmers can only pass along half of their cost increase. This puts the total short term 

loss, after rounding to the nearest $500 million, at $1.5–$5 billion. Over the longer term, the 

$2.5–$8 billion in income loss assumes that $4 billion out of the $6.5–$12 billion in lost production would have generated no income and that the income generated on the remaining $2.5–

$8 billion ($6.5–$12 billion minus $4 billion) would be $625 million to $2 billion. The $3–$9 billion in higher costs translates into $2–$6 billion in income loss using a .66 long term ratio versus

a .5 short term ratio for cost increases absorbed by farmers. Rounding to the nearest $500 million puts the total income loss for the long term at $2.5–$8 billion per year. 

single largest expense and that access to a significantly larger labor pool would 

allow producers to market the same or larger volume at lower costs. A drop in Mexican prices of 10 percent, for example, would put significantly more U.S. producers 

at risk of failure. 

With a significant share of U.S. specialty crop production essentially out-sourced, 

the affected farm resources would be available for alternative uses. Normally, at 

least some of the resources of displaced producers are bought up by generally larger, 

more profitable operators. This works to reduce the net drop in production. Given 

USDA survey indications of the value of the resources (such as land and water) in 

question, the resources affected would generally have to continue to be used in high 

return activities such as specialty cropping. However, this potential for offsetting resource shifts would be limited in the migrant worker case since other operators normally looking to expand would themselves be under pressure due to higher labor 

costs. 

The much smaller role played by hired labor and the more limited potential for 

imports would translate into a different adjustment in the rest of the agricultural 

sector. Loss of migrant labor would translate into higher production costs and the 

loss of a small proportion of field crop and livestock producers, most of whose resources would likely be bid away by more profitable operators. The agricultural sector models used at FAPRI and USDA to develop agricultural baseline projections 

suggest that the responsiveness of field crop and livestock sectors to increases in 

cost is approximately 0.2 (i.e., a 10 percent increase in costs is associated with a 

2 percent decrease in production). Consequently, the drop in production would be 

small. 

However, the vast majority of field crop and livestock producers who remained in 

business would face higher costs for their ongoing production activities. Given the 

farm sector’s historical role as a price-taker rather than a price-maker, most of the 

cost increase associated with $11–$14 per hour labor could not be passed on in the 

form of higher prices. Historically, half or more of cost increases come out of farm 

income. 

In conclusion, overall agricultural production would fall $5–$9 billion in the short 

term and $6.5–$12 billion in the longer term as the shock of a labor shortage and 

wages increases worked through the sector. This would be due to large losses in the 

fresh fruit and vegetable sector and smaller losses in the rest of the fruit and vegetable sector and in the field crop and livestock sectors (Table 1). Producers who remained in production would face a sector-wide increase in costs of $2.5–$7 billion 

in the short term and $3–$9 billion in the longer term. 

These two impacts can be converted into a farm income loss using USDA’s farm 

accounts to estimate the share of production dollars that normally accrue to farmers 

as income and the share of production expenses that typically come out of farm income. The farm accounts data suggest that 20–30 percent of production receipts accrue to farmers as income. The same accounts and the agricultural sectors models 

used here suggest that 50–66 percent of an increase in production expenses normally is paid out of income. These parameters change with the size of the change 

in production and expenses considered. Using them as guidelines, the production 

losses and cost increases estimated here translate into a $1.5–$5 billion income loss 

in the short term and $2.5–$8 billion loss in the longer term (Table 1).4 These estimates compare to an annual farm income average of $56 billion over the last decade. 

47

Table 1. Losses in Farm Production and Income With the Elimination of Migrant 

Labor

Note: See footnote 4.

Given the limited experience agriculture and the broader economy has had with 

labor disruptions even approaching the magnitude involve in restricting migrant 

labor, these production and income estimates could prove conservative. Several factors could work to raise them substantially. For example, underlying the analysis 

is the assumption that labor moves freely and immediately between jobs in the U.S. 

economy. In other words, agriculture would pay more to bid labor away from the 

general economy while the majority of operators continue to function with higher 

costs but without interruption. Vulnerable producers leave the sector. In actual fact, 

labor markets are far more rigid and the adjustments more complicated. Moving 

500,000 replacement workers between sectors would require considerable time and 

involve significant disruption. 

This is a particularly important assumption in the agricultural sector, given production cycles that make many producers sensitive to short term disruptions. This 

potential for disruption is most marked in the fruit and vegetable sectors—i.e. the 

sector with the most perishable product and greatest dependence on migrant workers. However, vulnerability to labor disruption extends to livestock operations, such 

as dairy, and field crop operations faced with harvest-time labor needs. As a result, 

an analysis based solely on wage rates may seriously understates farm impacts. 

How restrictions on migrant labor were implemented would also be of critical importance. The estimates outlined here assume implicitly that restrictions were implemented with enough lead-time for the sector to adjust. Without this lead-time, the 

impact would be significantly greater than estimated here. 

In addition, the analysis makes no provision for the upward pressure on wages 

above the $14.35 per hour level that eliminating migrant workers could have. While 

there is no precise count of the total number of migrant workers currently in the 

U.S., even the 10–11 million estimates at the low end of the range would be large 

enough to spark an economy-wide increase in wages. In this setting, agriculture 

would have to match the new wages in effect rather than the old $11–$14 per hour 

wages. This could also increase farm sector adjustment costs significantly. 

Other factors could potentially work to lower adjustment costs. For example, the 

estimates describe here also make no provision for the sector’s capacity to make 

structural changes that minimize the need to hire replacement labor. This would 

work to lower adjustment costs. While limited in the short term, the sector has adjusted to input cost increases in the past by modifying production technologies and 

changing the mix of inputs used in the production process. The adjustment that 

comes to mind immediately is falling back on the substitution of machinery for 

labor. As the following discussion suggests, however, the potential in the short term 

of 1 to 5 years is limited at best. 

V. Mechanization 

One alternative to the adjustments identified in this report often cited by supporters of restricting migrant workers is increased mechanization. However, a closer 

look at the supply of mechanization technology on the shelf, the long lead-time involved in developing new technology and the changing nature of hired labor demand 

suggests that mechanization would have a very limited role to play in the short and 

intermediate term. 


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Farmers have historically favored development and adoption of mechanization 

technology as a means of controlling costs, boosting incomes and minimizing the difficulties involved in hiring and retaining non-family labor. Consequently, most of 

the ready stock of mechanization technology has already been adopted. Decreased 

public and private investment in research and development over the last 2 decades 

has also worked to limit new technology in the pipeline. Given the farm sector’s past 

experience with mechanization, the lead-times in question could be 10–15 years. 

Mechanization of processing tomatoes, for example, took 10–15 years from the late 

1940s through the early l960s. There were none of the challenges associated with 

fresh fruits and vegetables where quality and appearance are at a premium. The 

process involved a concerted effort by several universities’ agricultural engineering 

departments, USDA support and strong grower interest. Once available, the technology was quickly adopted and proved to be a major factor in making the U.S. one 

of the most competitive producers of processing tomatoes in the world. But the quick 

adoption once there was a prototype may be the exception, not the rule. 

Mechanization in other commodity markets has made sense only at scales large 

enough to rule out adoption for all but a minority of operators. The livestock sector, 

such as dairy, is a good example. Advances have been made in mechanical milking 

with the use of robotics but the technology generally requires 1,000 or more milk 

cows to reach the minimum scale necessary to justify the investment. Robotic milkers were introduced several years ago, yet costs are still so high that such a chance 

is prohibitive for 95 percent of all dairy operators. 

While there is certainly potential for some added mechanization over the long 

term, the potential for many commodities is very limited or non-existent, regardless 

of the time frame. The fresh fruit and vegetable market is a good example. As already noted, human dexterity and judgment is needed in the picking and packing 

of produce to meet consumer demand and to address concerns about the lack of uniform maturity, incomplete mechanical fruit removal, mechanical bruising, and differences in readiness criteria. Next generation technology that addresses these 

needs is not even on a drawing board at this time. 

Hence, advanced mechanization alternatives would require a revival of public-private investment in public-private research and development and a long-term Congressional funding commitment. Even then, the contribution would likely be limited 

to some products and not others, concentrated in the longer term, and economically 

viable only at large enough scale to further restrict its impact. 

VI. Designing a Viable Guest Worker Program 

One approach to meeting U.S. homeland security concerns while accommodating 

agriculture’s need for labor is to develop a viable guest worker program as an integral part of any legislation affecting migrant labor. The economic considerations 

identified earlier in this report suggest that such a program would have to have several critical components. 

First, a viable guest worker program would have to accommodate a large number 

of workers efficiently. Providing just the agricultural sector with an uninterrupted 

supply of guest workers would require a program capable of handling 500,000 workers each year. The current H–2A program accommodates about 30,000. Handling 

the much larger volumes needed in agriculture would require streamlining the application and review process in both the U.S. and the country of origin in order to 

protect homeland security and facilitate worker flow. 

Second, a viable guest worker program would allow the open market to determine 

wages and benefits. The existing program’s ‘‘adverse effect’’ provisions have led DOL 

to issue arbitrary guidelines to protect the American worker from an influx of lowcost foreign labor that would bid down wage rates. Such has not been the case. As 

noted earlier, agricultural wages are well above the minimum wage and wages in 

other industries such as food preparation. The DOL provisions in question do, however, work to raise wages and benefits for foreign farm workers above market-clearing levels without leading to any increase in Americans seeking farm jobs. Migrant 

farm labor hired through the program often costs $14–$17 per hour compared to the 

$9.50 average for the sector. The increase in hired farm worker wages shown in Figure 2, combined with farm operator difficulties in securing American workers even 

at the higher wages paid over the last decade, indicate that any adverse impact on 

American workers is minimal at best. Market forces would prevent any widespread 

abuse in the future as Americans vote with their feet for jobs elsewhere in the economy even at substantially lower wages. Access to administrative remedies would be 

sufficient to address any isolated cases of abuse. 

Third, a viable program would include provisions designed to meet agriculture’s 

unique labor needs. For example, farmers generally need to lock in labor well in advance as part of their farm management plans. However, fluctuations in weather 

49

could move up or push back the dates labor is actually needed. Given the perishable 

nature of agricultural production, many farmers in question would not be able to 

‘‘wait in line’’ behind other employers with non-perishable products. Many farmers’ 

labor needs are also concentrated in short periods of time centered around harvest. 

Hence, a viable program would allow for worker movement between employers to 

provide a guest worker with long enough employment to make the program worthwhile. Many other farmers need year round labor that would not ‘‘fit’’ into a seasonal worker program. 

Fourth, the NAWS survey indicates that migrant workers typically have an established work history with specific employers. The NAWS survey indicates that the 

average migrant worker has worked for the same employer/employers for more than 

4 years and has been doing farm work in the U.S. for up to 10 years. A viable guest 

program would provide for continuing these established employer-employee links. 

Note on Methodology 

This analysis is subject to several limitations relating to data and methodology. 

On balance, these limitations suggest that the impact ranges cited in the text are 

best interpreted as orders of magnitude rather than precise estimates. 

Regarding data, there are several sources with often conflicting observations. 

While the data tend to paint the same general picture, they can differ on specifics 

in any 1 year. For the purposes of this report, the National Agricultural Labor Survey conducted by USDA and the National Agricultural Workers Survey done by the 

Department of Labor were treated as definitive. Hence, for example, the report assumes than 53 percent of agriculture’s hired workforce would be affected by restrictions on migrant labor despite indications from other largely anecdotal sources that 

the number affected would be higher and the impact of restrictions consequently 

greater. 

Regarding methodology, there has been relatively little research on farm labor 

markets done by USDA or the land grant universities. Hence, the econometric basis 

for doing impact analysis does not exist. The same is true for the broader labor market, particularly for the range of jobs relevant for this analysis. The analysis here 

is based on the assumption that farmers would have to bid in the open market for 

labor to replace lost migrant workers. This makes understanding how labor markets 

operate and how the agricultural sector adjusts to across-the-board increases in 

labor costs critical. 

Regarding operation of labor markets, this analysis assumes that the Department 

of Labor’s surveys of wages and employment can be used to develop a rough approximation of the labor supply curve for the range of jobs relevant for a farm labor 

analysis. There are undoubtedly many other job categories with wages that fall between Figure 7’s benchmarks, but not with sufficient numbers likely to shift to fill 

agriculture’s job vacancies. In addition, the wages shown are averages, with distributions including significantly higher and lower wages. However, it was assumed 

that Figure 7’s benchmarks could be used to sketch out a rudimentary schedule of 

the higher wages agriculture could expect to pay to attract and hold replacement 

workers. 

As already noted, the analysis also assumes that labor moves freely between categories, and that labor movement between categories is based solely on relative 

wages as opposed to a combination of wages and job characteristics. And as already 

noted, the analysis makes no provision for the generalized upward pressure on 

wages above the $14.35 per hour level that eliminating migrant workers across the 

economy could have. All of these labor assumptions work to reduce and ‘‘smooth out’’ 

the labor adjustment in agriculture. 

These are particularly important assumptions for the agricultural sector, given 

production cycles that make producers sensitive to short term disruptions. This potential for disruption is most marked in the fruit and vegetable sectors—i.e. the sector with the most perishable product and greatest dependence on migrant workers. 

However, vulnerability to labor disruption extends to livestock operations faced with 

day-to-day operational needs and field crop operations faced with harvest-time labor 

needs. This suggests that an analysis based solely on replacement wage rates understates farm impacts. It also suggests that how restrictions on migrant labor are implemented is also of critical importance. The estimates outlined here assume implicitly that restrictions were implemented with enough lead-time for the sector to adjust—to find replacement workers. Without this lead-time, the impact would be significantly greater than estimated here. 

Regarding operation of the agricultural economy, this analysis assumes that farmers have little flexibility in substituting other inputs for hired labor. The analysis 

also assumes that the farm sector would have difficulty passing higher labor costs 

on to consumers. The elasticities for the short and long term were .50–.66, indiVerDate 0ct 09 2002 10:21 May 05, 2009 Jkt 041481 PO 00000 Frm 00053 Fmt 6633 Sfmt 6621 I:\DOCS\110-30\48999.TXT SOLEM PsN: REBEKA
50

cating that half or more of the impact of a labor cost increase would take the form 

of an added production expense and income deduction. The analysis also assumes 

that the long term relationship between production receipts and income holds—that 

is, farmers loose $.25 in income for every dollar in production displaced. These assumptions are consistent with the relationships at work in the Food and Agricultural Policy Institute’s agricultural sector model and the USDA analysis underpinning the Department’s Baseline. While these assumptions about the labor market 

and the agricultural economy suggest that this report’s estimates of the costs of restricting migrant labor could be low, several factors suggest that they could be high. 

For example, the estimates describe here make no provision for the sector’s capacity 

to make structural changes that would minimize the need to hire replacement labor. 

While limited in the short term, the sector has adjusted to input cost increases in 

the past by modifying production technologies and changing the mix of inputs used 

in the production process. The materials presented here suggest, however, that the 

potential in the short term of 1 to 5 years is limited at best. 

The analysis also provides for a distinction between short and long term impacts. 

The short term impacts are defined as 1–2 year impacts and do not provide for the 

full effect of a sustained across-the-board labor cost increase. The longer term impacts—3 years or more—provide for the full impact of higher wages as agriculture 

moves up toward the top end of the $11–$14.35 range discussed in the text. The 

longer term impacts also incorporate the full impact of cost increases working 

through the vulnerability analysis to reduce production and raise costs. 

These assumptions can be varied to establish a range around the income estimates described here. A lower bound on the income loss estimate can be established 

by assuming labor replacement costs would be lower, that farmers can pass along 

more of a cost increase to consumers, and that less production will exit the sector. 

This would lower the $1.5–$5 billion estimate to $1–$3.5 billion in the short term 

and the $2.5–$8 billion estimate for the long term to $1.5–$5 billion. Alternatively, 

assuming replacement wages are higher, that farmers are less able to pass along 

cost increases to consumers, and that more producers are forced to exit, the short 

term income loss would be $2–$6.5 billion and $4–$9.5 billion in the longer term. 

In short, the impact of restricting agriculture’s access to migrant labor is significant even with alternative more favorable assumptions for key parameters. 

ATTACHMENT #4

Legal, Stable Workforce Critical for Agriculture 

Washington, D.C., October 4, 2007—Agriculture is on the front lines of the immigration debate in America and farmers, ranchers and growers desperately need 

a solution to the labor challenges they face, the American Farm Bureau Federation 

told Congress today. 

‘‘Sustaining our current level of productivity is contingent on a stable, reliable and 

legal workforce. Nowhere is the problem more acute than in agriculture,’’ AFBF 

President Bob Stallman testified at a House Agriculture Committee hearing on the 

labor needs of American agriculture. ‘‘The labor situation on America’s farms and 

ranches is closely linked with the issue of immigration reform.’’

To illustrate the severity of the problem, Stallman cited Labor Department surveys indicating that in 2001 and 2005, 53 percent of the hired crop labor force was 

not authorized to work in the U.S. 

‘‘We believe this is probably a low estimate because it is based on responses volunteered by individuals to government-authorized interviewers,’’ Stallman said. ‘‘It 

seems reasonable that at least some individuals surveyed did not volunteer that 

they were not legally authorized to work.’’

Using National Agricultural Statistics Service figures that peg the number of nonfamily farm workers at one million, Farm Bureau estimates at least 500,000 agricultural workers in the U.S. lack proper authorization. 

Analysis of additional NASS data reveals a progressive tightening in the supply 

of agricultural labor, according to AFBF. Farmers normally require the most labor 

for their operations during the third quarter of each year. But a comparison of the 

third quarter of 2005 to the third quarter 1 year later indicates there were 60,000 

fewer farm workers during this critical time period in 2006. 

The change in the balance between farm labor supply and demand is reflected in 

higher average wages for hired farm workers compared to other types ofworkers. According to the Labor Department, in 2005, hired farm workers earned an average 

of $11 to $12 per hour, compared to workers earning $6.65 per hour for food preparation, $11 per hour for janitorial jobs and $14.65 for construction labor. In fact, 

there are currently 10 million workers—more than 7 percent of the total U.S. workforce—who work for lower wages than they could earn in agriculture. 

51

‘‘Clearly, farmers are facing a difficult situation as they scramble for additional 

labor in an economy with a relatively low unemployment rate and a lack of individuals willing to work in agriculture,’’ Stallman said. 

‘‘Without a stable, legal supply of labor to replace currently unauthorized workers, the fresh fruit and vegetable sector could see U.S. production decline by up to $9 

billion a year,’’ Stallman said. ‘‘Similarly, an abrupt loss of our labor supply could 

cause net farm income to drop by up to $5 billion annually.’’

AFBF continues to urge Members of Congress to set aside their partisan and ideological differences and do what is right for agriculture, and the U.S. as a whole, by 

approving national immigration legislation reform legislation without delay.

The CHAIRMAN. Thank you very much, Mr. Stallman, for that 

testimony. We now will recognize Mr. Lee Wicker, the Deputy Director of North Carolina Growers Association. Welcome to the Committee. 

STATEMENT OF H. LEE WICKER, DEPUTY DIRECTOR, NORTH 

CAROLINA GROWERS ASSOCIATION, VASS, NC 

Mr. WICKER. Mr. Chairman, thank you for the opportunity to 

participate in this important hearing. I am Lee Wicker, Deputy Director of the North Carolina Growers Association, the largest H–

2A Program user in the nation. 

North Carolina growers has 725 members this year and will employ nearly 7,500 workers. I represent the best, most compliant 

farmers in the nation, and I am extremely proud of them. I am the 

only person on this distinguished panel of experts who is a former 

government bureaucrat, a consultant, an advocate, a farm worker, 

a farmer, and an H–2A Program user. I am uniquely qualified to 

talk about this issue from a clinical and practical perspective. 

Unfortunately the issue of farm labor has become hyper politicized, due in part to the amnesty provisions contained in the 

AgJOBS bill. Farmers need workers to grow food, not amnesty. To 

ensure that growers have an adequate and legal labor force, the solution is not amnesty but rather repair of the broken H–2A Program so that growers will use it. 

Currently H–2A is too litigious, too expensive, and too much of 

a bureaucratic morass at the three Federal agencies that oversee 

the program. In order to fix H–2A so that it is workable for farmers, there are four crucial areas of the program that must be corrected. 

Number one, change the wage rate to prevailing. Every other 

visa program pays prevailing wage. Why should agriculture with 

its entry-level, low skill jobs be treated differently? The current H–

2A minimum wage in North Carolina is $9.02 per hour. In the last 

16 years, the wage is North Carolina has gone up a staggering 76 

percent. Farmers cannot afford to pay that much, especially on top 

of the free housing, utilities, and transportation required by law. 

Number two, require binding mediation and arbitration. Growers 

and workers should be required to resolve legal issues through mediation and arbitration. Growers sign contracts all the time that 

contain mandatory mediation agreements. If it is okay for farmers, 

then it should be okay for farm workers. Since 1989, the growers 

of NCGA have been sued over 30 times and have paid over $5 million in attorneys’ fees and settlement costs. 

This is a common experience among H–2A Program users around 

the country. I believe that you can protect farm workers without 

being sued by an attorney with a political and social agenda, and 

52

I am deeply troubled that growers who are making a good faith effort to do things legally and responsibly are being attacked. 

Number three, visa cost and transportation reimbursement. Cost 

associated with the worker applying for the visa should be paid for 

by the worker. Inbound transportation should be reimbursed to the 

worker upon completion of 50 percent of the contract. If the money 

is reimbursed upon arrival, the financial incentive for the worker 

to remain on the farm is removed. And guess where the workers 

will be. Gone. 

Number four, streamline and simplify the H–2A process. There 

are many delays with the U.S. Departments of Labor, Homeland 

Security, and most problematic has been the issue of getting 

enough appointments from the State Department for the one-onone interviews and background checks. The system needs to be 

streamlined and simplified, eliminating redundant needless rubber 

stamping by bureaucrats. 

Most experts agree that if the number of H–2A workers were to 

double, the program would collapse under its own bureaucratic 

weight. The infrastructure is not in place for significant expansion. 

In summary, without these four changes, the H–2A Program is 

simply too expensive and too litigious for most growers to use. Most 

farmers prefer to employ illegals because it is cheaper, and they remain off the Federal and legal radar screens. If you employ H–2A 

workers, you can expect to have investigations by the U.S. Departments of Labor, Homeland Security, Justice, State, the FBI, the 

IRS, reporters, attorneys, and farm worker advocates. 

As Agriculture Committee Members, you have the forum and the 

ability to articulate the problem and offer policy solutions that will 

ensure American agriculture has an adequate and legal labor force. 

Please remember our growers need a workable H–2A Program, not 

amnesty. Amnesty did not work in 1986, and AgJOBS, with its amnesty provisions, will not work today. It will only make matters 

worse. 

The North Carolina Growers Association supports H.R. 1792, the 

Temporary Agricultural Labor Reform Act of 2007. I thank you for 

your attention. 

[The prepared statement of Mr. Wicker follows:]

PREPARED STATEMENT OF H. LEE WICKER, DEPUTY DIRECTOR, NORTH CAROLINA

GROWERS ASSOCIATION, VASS, NC 

Mr. Chairman, thank you for the opportunity to participate in this important 

hearing. I’m Lee Wicker, Deputy Director for the North Carolina Growers Association, the largest H–2A program user in the nation. The NC Growers Association has 

725 members and will employ nearly 7,500 H–2A farmworkers in 2007. I represent 

the best most compliant farmers in the nation and I am extremely proud of them. 

I am the only person on this distinguished panel of experts who is a former government bureaucrat, a consultant, an advocate, a farmworker, a farmer and an H–2A 

program user. I am uniquely qualified to talk about this issue from a clinical and 

practical perspective. 

Unfortunately, the issue of farm labor has become hyper politicized—due, in part, 

to the amnesty provisions contained in the AgJOBS bill. Farmers need workers to 

grow food, not amnesty. 

To ensure that growers have an adequate and legal labor force, the solution is 

not amnesty, but rather repair of the broken H–2A program so that growers will 

use it. Currently, H–2A is too litigious, too expensive and too much of a bureaucratic morass at three Federal agencies that oversee the program. 

53

In order to fix H–2A so that it is workable for farmers, there are four crucial aspects of the program that must be corrected:

1. Change the wage rate to prevailing. Every other visa program pays prevailing 

wage. Why should Agriculture, with its entry level, low skill jobs, be treated differently? The current H–2A minimum wage rate in NC is $9.02 per hour. In 

the last 16 years the wage in NC has gone up a staggering 76%. Farmers cannot afford to pay that much, especially on top of the free housing, utilities, and 

transportation required by law.

2. Require Binding Mediation and Arbitration. Growers and workers should be 

required to resolve legal issues through mediation and arbitration. Growers sign 

contracts all the time that contain mandatory mediation arbitration agreements. If it is okay for farmers, then it should be okay for farmworkers. Since 

1989, the growers’ of NCGA have been sued over 30 times and have paid over 

$5 million in attorneys fees and settlement costs. This is a common experience 

among H–2A program users around the country. I believe that you can protect 

farm workers without being sued by an attorney with a political and social 

agenda. I am deeply troubled that growers who are making a good faith effort 

to do things legally and responsibly are being attacked.

3. Visa Costs and Transportation Reimbursement. Costs associated with the 

worker applying for the visa should be paid for by the worker. Inbound transportation should be reimbursed to the worker upon completion of 50% of the 

contract. If the money is reimbursed upon arrival, the financial incentive for the 

worker to remain on the farm is removed—and guess where the workers will 

be . . . gone.

4. Streamline and Simplify the H–2A Process. There are many delays with U.S. 

DOL, Homeland Security and most problematic has been the issue of getting 

enough appointments from the State Department for the one-on-one interviews 

and background checks. The system needs to be streamlined and simplified, 

eliminating redundant and needless rubber-stamping by bureaucrats. Most experts agree that if the number of H–2A workers were to double, the program 

would collapse under its own bureaucratic weight. The infrastructure is not in 

place for significant expansion.

In summary, without these four changes, the H–2A program is simply too expensive and too litigious for most growers to use. Most farmers prefer to employ illegals 

because it is cheaper and they remain off the Federal and legal radars. If you employ H–2A workers you can expect to have investigations by the U.S. Departments 

of Labor, Homeland Security, Justice, State, the FBI, the IRS, reporters, attorneys, 

and farmworker advocates. 

As Agriculture Committee Members you have the forum and the ability to articulate the problem and offer policy solutions that will ensure that American Agriculture has an adequate and legal labor force. Please remember, our growers need 

a workable H–2A program, not amnesty. Amnesty did not work in 1986 and 

AgJOBS, with its amnesty provisions, will not work today, it will only make matters 

worse. 

Thank you for your attention.

The CHAIRMAN. I thank the gentleman. I am now pleased to recognize—if I can get organized here—Mr. Scott Herring, the Executive Vice President and CEO of Farm Credit of Western New York. 

Welcome to the Committee. 

STATEMENT OF C. SCOTT HERRING, EXECUTIVE VICE

PRESIDENT AND COO, FARM CREDIT OF WESTERN NEW 

YORK, ACA, BATAVIA, NY 

Mr. HERRING. Mr. Chairman, Members of the Committee, thank 

you for the opportunity to testify on the labor needs of American 

agriculture. My name is Scott Herring, and I am the Chief Operating Officer for Farm Credit of Western New York, and we extend 

credit and other financial services to over 3,500 customer members. 

The current farm labor situation is of great concern to our farmer 

members and to our organization. During the past decade, farm 

businesses have had difficulty hiring local workers to meet their 

54

needs and, as a result, have employed growing numbers of immigrant labor. 

Over the past few years, there have been more labor disruptions 

in western New York as a result of actions by ICE, local police, or 

simply because farm workers believe that the farm that they 

worked on would be targeted for enforcement actions. 

In light of the concern of farm labor availability, the New York 

Farm Credit Associations have estimated the economic impact of 

the loss of immigrant labor on New York farms. New York agriculture includes significant production in dairy, vegetables, fruit, 

and the greenhouse nursery sector. These sectors can be the most 

vulnerable to shortages in labor. The fact is that labor disruptions 

can quickly result in severe financial problems on many farms. 

Most farms simply do not have the financial resources to survive 

if they cannot fully harvest their products. 

With the increasing consumer demand for quality products, a 

delay in harvesting can also have a dramatic negative impact. 

While farmers must deal with natural disasters and with wide 

farm price fluctuations, a labor shortage causes farms to go out of 

business, shrink in size, and if possible move to more mechanization. 

Our analysis indicates that a prolonged severe disruption in 

labor availability as a result of enforcement actions without enhanced worker programs would have the following impact: We estimate that about 800 New York farms are highly vulnerable to 

going out of business or will be forced into part-time farms with severe labor shortages. 

The primary impact would be on dairy farms, with fruit, vegetable, and greenhouse nurseries also severely impacted. These 

farms have total sales estimated to be in excess of $700 million, 

and realistically as many as 7,000 full-time equivalent positions 

would be impacted. These farms operate approximately 750,000 

acres of cropland, and if these farm’s businesses were to cease operating, some of this acreage would switch into less intensive agriculture, but hundreds of thousands of acres would be vulnerable to 

being discontinued from crop production and be converted to nonfarm uses. 

The economic impact goes beyond the farm gate and could undermine in part the state’s ag infrastructure that all farms depend on. 

In addition to the loss of farm employment, jobs would decline in 

the farm service input processing and marketing sectors. From a 

farmer or a lender perspective, not having a stable and reliable 

labor supply to harvest production, milk dairy cows, or undertake 

other necessary production and marketing tasks could be a catastrophic situation. 

Farms can deal with low prices and poor production for at least 

1 and sometimes 2 years. The same could be said of a severe labor 

shortage that reduces harvest for a year or 2. But after a year or 

2, the farm’s cash reserves are exhausted, the line of credit is used 

up, and the farmer is likely eroding their equity. 

When this happens, the business is looking seriously at its options. The farm simply cannot risk making future investments if 

they don’t feel that they can be successful in the harvest and in 

other areas of bringing production to market. As a lender, we are 

55

Farm Credit of Western New York is part of the nationwide Farm Credit System. This analysis on farm labor and the potential impact of labor shortages was done by Farm Credit of Western New York, First Pioneer Farm Credit and Yankee Farm Credit. The analysis is based on 

data from the New York State 2002 Census of Agriculture and covers the entire state. As customer-owned cooperatives, Farm Credit institutions are owned and governed by farmers. In New 

York State, these Farm Credit institutions serve 8,500 members with in excess $1 billion in 

loans and have a market share of institutional farm debt of approximately 60%. 

concerned, and we know that many other lenders share that concern. Farm businesses have significant capital investment and limited financial resources to deal with labor shortages. They must 

also compete in a highly competitive world market. 

It is critical to New York, the American farmers, and ultimately 

for the American consumer that agriculture immigration reform be 

adopted. We support the need to secure our nation’s border and 

control the entry of immigrants on America’s terms. A critical part 

of that solution is a workable program for agriculture that meets 

those objectives while providing America’s farms with a reliable 

source of farm labor. 

Any reform solution must deal with certain realities. First, it 

must provide means for seasonal workers to enter, work, and then 

return to their homeland in an efficient and timely manner. Second, it must provide a means to hire workers, many who have 

years of service and have advanced into key positions yet lack proper legal status. Providing these year-round, experienced workers a 

way to earn legal status is essential. We believe the urgency is 

real. The uncertainty surrounding it makes it very difficult for 

farmers to plan for the future. And we thank you for your consideration. 

[The prepared statement of Mr. Herring follows:]

PREPARED STATEMENT OF C. SCOTT HERRING, EXECUTIVE VICE PRESIDENT AND COO, 

FARM CREDIT OF WESTERN NEW YORK, ACA, BATAVIA, NY 

Thank you for the opportunity to testify on the labor needs of American agriculture. My name is Scott Herring, I am the Executive Vice President and Chief Operating Officer for Farm Credit of Western New York. Farm Credit of Western New 

York extends credit and other financial services to over 3,500 customer-members in 

a 16 county area in western New York. 

The current farm labor situation is of great concern to our farmer-members and 

to our organization. We are the largest lender to agriculture in western New York. 

During the past decade, farm businesses in New York have had increasing difficulty 

hiring local workers to meet their needs and as a result have employed growing 

numbers of immigrant labor. 

Over the past few years there have been more labor disruptions in western New 

York as a result of actions by Immigration and Customs Enforcement, local police 

departments or because farm workers believed that the farm that they worked on 

would be targeted for enforcement actions. In light of the concern with farm labor 

availability, Farm Credit of Western New York and the other New York Farm Credit associations estimated the economic impact of the loss of immigrant labor on New 

York farms last year. We recently modified our estimates as we have received more 

input from farmers and our farm business consultants. Attempting to establish impact numbers requires making a number of assumptions and should be viewed as 

estimates only. 

New York agriculture is very diverse and includes significant production in dairy, 

vegetable, fruit and the greenhouse-nursery sectors. These sectors can be most vulnerable to shortages of labor. The fact is that labor disruptions can quickly result 

in severe financial problems on many farms. Most farms simply do not have the financial resources to survive if they can not fully harvest their products. With the 

increasing consumer demand on quality production, a delay in harvesting can also 

have a dramatic negative impact. While farmers must deal with natural disasters 

and with wide farm price fluctuations, a labor shortage causes farms to go out of 

business, shrink in size or if possible move more to mechanization. 

56

Our analysis, which is based on New York State agricultural Census data, indicates that a pro-longed severe disruption in labor availability as a result of enforcement actions without enhanced guest worker initiatives would have the following 

impact:

• We estimate that about 800 New York farms are highly vulnerable to going out 

of business or forced to part-time farms from a severe labor shortage. The primary impact would be on dairy farms with fruit, vegetable and greenhousenursery operations also severely impacted. Larger farms would feel the impact 

of this first, but many mid-sized farms could also be severely affected and have 

to change or cease operations.

• These farms have total sales estimated to be in excess of $700 million.

• Thousands of on-farm jobs would be lost if these farms go out of business. Realistically, as many as 7,000 FTE positions (Full Time Equivalents) could be impacted.

• The economic impact of this situation goes well beyond the farm-gate and could 

undermine, in part, the state’s agricultural infrastructure that all farms depend 

on. In addition to the potential loss of farm employment, jobs would decline in 

the farm service, input, processing and marketing sectors. Some economists estimate that three to four jobs in the upstream and downstream economy are 

created by the production associated with each farm worker job.

• The vulnerable farms operate approximately 750,000 acres of cropland. If these 

farm businesses were to cease operating, some of this acreage would switch into 

less intensive agriculture, but hundreds of thousands of acres would be vulnerable to being discontinued from crop production and converted to non-farm uses.

Final Comments 

From a farmer or lender perspective, not having a stable and reliable labor supply 

to harvest production, milk dairy cows or undertake other necessary production and 

marketing tasks could be a catastrophic situation. Farms can deal with low prices 

and poor production for at least 1 year and sometimes 2 years. The same could be 

said of a severe labor shortage that reduces harvest for a year or 2. But after a year 

or 2, the farm businesses’ cash reserves are exhausted, the line of credit is used up 

and the farmer is eroding their farm equity. When this happens, the farm business 

is looking seriously at their options. The farm simply can not risk making future 

investments if they don’t feel that they can be successful in the harvest and in other 

areas of bringing production to market. 

As a lender we are concerned and we know that many other lenders share that 

concern. Farm businesses have significant capital investment and limited financial 

resources to deal with a severe labor shortage situation. They also must compete 

in a highly competitive world market. It is critical to New York State and American 

farmers and ultimately for the American consumer that agricultural immigration reform with appropriate farm worker provisions be adopted. 

We support the need to secure our nation’s borders and control entry of immigrants on America’s terms. A critical part of that solution is a workable program 

for agriculture that meets those objectives while providing America’s farms with a 

reliable source of farm labor. Any reform solution must deal with several realities. 

First, it must provide means for seasonal and migrant workers to enter, work, and 

return to their homeland in an efficient and timely manner. Secondly it must provide means to hire workers, many who have years of service and have advanced into 

key positions, yet lack proper legal status. Providing these workers a way to earn 

legal status is essential. 


11030021
57

Thank you for your consideration of our views.

C. SCOTT HERRING, 

Executive Vice President and Chief Operating Officer, 

Farm Credit of Western New York, ACA.

The CHAIRMAN. Thank you very much. I will recognize Mr. 

Bruce—is it Goldstein? 

Mr. GOLDSTEIN. Goldstein. 

The CHAIRMAN. Goldstein, I’m sorry. Executive Director of the 

Farmworker Justice from Washington, D.C. Welcome to the Committee. 

STATEMENT OF BRUCE GOLDSTEIN, EXECUTIVE DIRECTOR, 

FARMWORKER JUSTICE, WASHINGTON, D.C. 

Mr. GOLDSTEIN. Thank you very much for the opportunity to testify today on the labor needs of American agriculture. Farmworker 

Justice is a 26-year-old national advocacy group that seeks to empower migrant and seasonal farm workers to improve their labor 

rights, immigration policy, and occupational safety and health. 

Over 100 farm workers are on Capitol Hill this week visiting Members of Congress to discuss the issues in this hearing today. 

Congress needs to address the farm labor problem in this country 

now. A conflict over policy has been festering since 1995. A remarkable compromise endorsed by farm worker unions, agricultural employers, and a wide array of other constituencies has won substantial support from Republicans and Democrats across the ideological 

spectrum. It deserves to be enacted. 

The majority of farm workers in the United States today are undocumented. Out of about 2.5 million agricultural workers in the 

United States, probably 60 percent or 1.5 million, possibly more, 

are immigrants who are not authorized to work. 

The presence of so many undocumented workers in an occupation 

translates into weak bargaining power for all farm workers. Farm 

workers’ income is very low, usually less than $13,000 a year. 

Housing is scarce and often decrepit. Very few farm workers receive even basic fringe benefits such as paid sick leave or holidays. 

Agriculture is ranked among the three most dangerous jobs in the 

United States. Without legal immigration status, farm workers find 

it difficult to win better job terms or government policy. 

Employers who hire farm workers now face a greater threat of 

immigration rates, border control, and other immigration enforcement that can deprive them of an adequate labor force. Of course, 

agricultural employers should improve wages and working conditions to attract job applicants and retain them. Congress should 

end the discrimination in overtime pay, safety and health regulations, and other laws that deprive farm workers of needed labor 

protections that other employees enjoy. The government also needs 

to substantially improve its labor law enforcement efforts. 

The reality, however, is that if we deported a substantial number 

of undocumented farm workers, there would be a tremendous labor 

shortage. Robots and other machines are not yet available to replace human beings in harvesting many of the fruits and vegetables we consume. America needs its farm workers. We are eating 

healthier and are buying more fruits and vegetables. In fact, the 

USDA has good news for us on trade. We are exporting more and 

58

more fruits and vegetables to consume in other nations. The people 

who create this bounty and place the food on the world’s dining tables should be treated with dignity. 

A responsible solution to this farm labor problem would also 

allow our law enforcement agencies to focus on finding criminals 

and terrorists, rather than on deporting poor immigrants simply 

seeking to support their families by producing Americans’ food. 

For years, there has been a stalemate in Congress that had three 

main warring positions. First, farm worker advocates wanted a legalization program like the 1986 law that permitted 1.1 million undocumented workers to become permanent immigrants. We were 

not able to pass that. 

Second, many agribusiness groups lobbied for changes to the H–

2A Program. We view the H–2A Program as abusive and overly 

skewed towards employers’ interests and against the workers’ interests. These proposals would have drastically reduced wage rates, 

minimized workers’ opportunities for jobs if they are U.S. citizens, 

weakened housing requirements, and they would prevent guest 

workers from obtaining legal aid. 

H–2A workers lack the economic freedom and democratic rights 

that this country prides itself on. The grower groups that sought 

these reforms failed to pass their bill, and most of them eventually 

began to discuss a compromise. 

Third, there is a group that seeks to do nothing except perhaps 

allow the problem to worsen as immigration enforcement expands 

and both farm workers and employers suffer the consequences. 

Doing nothing, in our view, is irresponsible, end the stalemate. 

There is a reasonable solution that has widespread support. 

AgJOBS is the nickname for the bill. The united farm workers 

played the leading role in negotiating on behalf of farm workers 

with major agribusiness groups to resolve years of harsh conflict. 

A bipartisan group of legislators in both Houses spent many, 

many hours ironing out the settlement of hard-fought positions 

among organizations that have traditionally refused to negotiate 

with one another. 

The compromise is a win-win solution. Farm workers who earn 

immigration status would increase their bargaining power with employers to be treated fairly. Businesses would obtain a legal, stable 

labor supply of experienced farm workers. And if labor shortages 

were to occur in the future, the H–2A Program would be available. 

This is a practical, reasonable solution. The opponents would preserve the unacceptable status quo. AgJOBS may not be perfect, but 

it is a responsible, balanced approach to meet the labor needs of 

American agriculture. Thank you. 

[The prepared statement of Mr. Goldstein follows:]

PREPARED STATEMENT OF BRUCE GOLDSTEIN, EXECUTIVE DIRECTOR, FARMWORKER

JUSTICE, WASHINGTON, D.C. 

Mr. Chairman and Members of the Agriculture Committee, thank you for the opportunity to testify today on the labor needs of American agriculture. My organization, Farmworker Justice, is a 26-year old national advocacy group that seeks to empower migrant and seasonal farmworkers to improve labor rights, immigration policy, and occupational safety and health. We have numerous publications on the 

issues the Committee is considering; I invite Members to visit our website, 

www.farmworkerjustice.org, to take advantage of these resources. 

59

Congress needs to address the farm labor problem in this country now. A conflict 

over policy has been festering since 1995. A remarkable compromise endorsed by 

farmworker unions, agricultural employers, and a wide array of other constituencies 

has won substantial support from Republicans and Democrats across the ideological 

spectrum. The majority of responsible legislators should assert themselves and end 

the stalemate. 

The principal farm labor problem is that the majority of farm workers in the 

United States are undocumented. Out of about 2.5 million agricultural employees 

in the U.S., probably 60% or 1.5 million, possibly more, are immigrants who are not 

authorized to work. 

The presence of so many undocumented workers in an occupation translates into 

weak bargaining power for all farmworkers. Most are too fearful of deportation to 

challenge unfair or illegal conduct or join a labor union. Even the citizens and authorized immigrants are reluctant to make demands on their employers if they 

won’t have the support of their exploitable co-workers. The consequences of this untenable situation are serious. Farmworkers’ incomes are very low, usually less than 

$13,000 a year. Housing is scarce and often decrepit. Very few farmworkers receive 

even basic fringe benefits, such as paid sick leave or holidays. Health care is rarely 

offered to farmworkers by their employers, and the undocumented and even new authorized immigrants to the U.S. are not eligible for Medicaid or other public benefits. Agriculture is ranked among the three most dangerous jobs in the United 

States. Without a legal immigration status, farmworkers find it difficult to win better job terms or government policy. 

Employers who hire farmworkers now face a greater threat of immigration raids, 

border control and other immigration enforcement that can deprive them of an adequate labor force. Many growers have sought to evade immigration law sanctions 

by using farm labor contractors to recruit and supervise workers in the fields. Some 

growers frivolously claim that they are not the ‘‘employer’’ of the farmworkers in 

their fields and that only the labor contractor is liable for violations of immigration 

and labor laws. 

Of course, agricultural employers should end labor contracting abuses and improve wages and working conditions to attract job applicants and retain them. Congress should end the discrimination in overtime pay, safety and health regulations, 

and other laws that deprive of farmworkers of needed labor protections that other 

employees enjoy. The government also needs to increase its labor law enforcement 

efforts drastically. 

The reality is, however, that if we deported a substantial number of undocumented farmworkers there would be a tremendous labor shortage. Robots and other 

machines are not yet available to replace human beings in harvesting many of the 

fresh fruits and vegetables we consume. 

America needs its farmworkers. We are eating healthier and are buying more 

fruits and vegetables. In fact, the U.S. Department of Agriculture has good news 

for us on trade: we are exporting more and more fruits and vegetables to consumers 

in other nations. The people who create this bounty and place the food on the 

world’s dining tables should be treated with dignity. 

We as a nation are concerned about security. We should want to know who is living and working in this country, but we don’t really know who is performing more 

than half the farm work in this country. A responsible solution to this farm labor 

problem would allow our law enforcement agencies to focus on finding criminals and 

terrorists, rather than on deporting poor immigrants simply seeking to support their 

families by producing America’s food. 

For years, there had been a stalemate in Congress that had three main warring 

positions. First, we farmworker advocates wanted Congress to follow the precedent 

of the 1986 immigration law that permitted undocumented farmworkers, after proving their recent agricultural work in the U.S. and complying with other immigration 

law obligations, to obtain a temporary immigration status and later a permanent 

status with a path to citizenship. Our argument being that if we need workers in 

America to perform jobs, we should invite people in as immigrants, rather than as 

exploitable indentured servants. This country experimented with the massive Bracero guest worker program for 22 years, ending in 1964. Despite significant labor 

protections in the Bracero program, it was widely recognized as abusive and a national embarrassment. We farmworker advocates had not been successful in our legislative advocacy for a replay of the 1986 legalization program. 

Second, many agribusiness groups lobbied heavily in the 1990’s for changes to the 

H–2A agricultural guest worker program. They sought to make it easier for employers to hire guest workers on temporary work visas with no path to immigration status (or citizenship), lower the program’s wage rates dramatically, minimize U.S. 

workers’ opportunities to obtain jobs, weaken housing requirements, prevent guest 

60

workers from obtaining legal aid, and reduce government oversight. The growers 

sought to transform the farm labor system into a system of exploitable guest workers and set their wages and other job terms at unconscionably low levels. H–2A 

workers have little bargaining power: they may not switch employers; they must 

leave the country when their job ends; if they wish to return the following season 

they must hope that their employer will apply for a visa for them. Thus, guest workers lack the economic freedoms and democratic rights that this country prides itself 

on. The grower groups failed to pass their bill and most eventually began to discuss 

a compromise. However, some legislators, egged on by some employer organizations 

and others, have continued efforts to pass similar legislation that also have failed. 

Third, there is a group that seeks to do nothing except perhaps allow the problem 

to worsen as immigration enforcement expands and both farmworkers and employers suffer the consequences. 

Doing nothing, in our view, is extraordinarily irresponsible. Congress should end 

its stalemate. A vocal minority of opponents should not be permitted to perpetuate 

this absurd status quo. There is a reasonable solution that has widespread support. 

AgJOBS is the nickname for the Agricultural Job Opportunity, Benefits and Security Act. The United Farm Workers played the leading role in negotiating on behalf 

of farmworkers with major agribusiness groups to resolve years of harsh conflict. A 

bipartisan group of legislators in the House and the Senate spent many, many hours 

ironing out the settlement of hard-fought positions among organizations that had 

traditionally refused to negotiate with one another. 

The bill contains two parts. First, it would create an ‘‘earned legalization’’ program. Applicants could obtain a temporary immigration status by proving that they 

been employed in U.S. agriculture in the past 2 years, either as a legal guest worker 

or as an undocumented worker. If the temporary resident then performs a specified 

amount of agricultural work, during a 3 to 5 year period, he or she could convert 

to lawful permanent resident status and receive a ‘‘green card.’’ Security checks 

would prevent terrorists, criminals and other unwanted individuals from using the 

program. During the 3 to 5 years of the future work requirement, the participants 

would be permitted to work for any employer and in any occupation as long as the 

agricultural work was performed. The farmworker’s spouse and minor children also 

would eventually become eligible to be immigrants. Several hundred thousand current farmworkers would be eligible for this program. 

Second, AgJOBS would revise the existing H–2A agricultural guest worker program, which allows employers to hire foreign citizens on temporary, nonimmigrant 

work visas. The H–2A program’s history of abuses made negotiations by farmworker 

advocates with employers difficult. The reforms would benefit employers by making 

the program easier and quicker to use and lowering the wage rates. The compromise 

would retain important wage protections that employers had sought to eliminate. 

AgJOBS also retains or expands other important labor standards to prevent job 

losses and wage cuts among U.S. workers (including the participants in the new 

earned legalization program) and protect foreign workers from exploitation. Regrettably, the compromise would not permit H–2A workers to earn a path to citizenship. 

The compromise is win-win-win solution even though (or, perhaps, because) it required painful concessions all around. Farmworkers who earn immigration status 

would increase their bargaining power with employers. Businesses would obtain a 

legal, stable labor supply of experienced farmworkers. If labor shortages were to 

occur in the future, the H–2A program would be available. Moreover, the U.S. government would know who resides within our borders and would be better able to 

enforce immigration and labor laws in agriculture. 

Some object to AgJOBS saying that it’s not a good enough deal for agricultural 

employers; they want the H–2A wage rates lowered even further, the housing requirement stripped out, the elimination of the job preference for U.S. workers, and 

other changes. These selfish demands were made in earlier legislation and failed. 

Congress needs to move forward. 

Some opponents argue that people who crossed our borders illegally should not 

be rewarded with an ‘‘amnesty.’’ AgJOBS is not an ‘‘amnesty.’’ It contains tough, 

multi-year work requirements, financial costs, and other obstacles to earn immigration status. 

The opponents would preserve the current unacceptable situation. They have no 

reasonable solution. They certainly have no legislation that could pass Congress. In 

the meantime, farmworkers face terrible choices, employers risk losing their businesses and this nation continues to allow a situation in which a majority of the employees of an entire economic sector lack authorized immigration status. 

We need solutions, not hollow rhetoric or more ideological stalemate. AgJOBS is 

not perfect but it is a responsible, balanced approach to meet the needs of American 

agriculture. 

61

Thank you for the opportunity to present testimony on behalf of farmworkers.

The CHAIRMAN. Thank you very much, Mr. Goldstein. And now 

our last panelist on this panel is Mr. Mike Brown, the Senior Vice 

President for Legislative Affairs of the American Meat Institute. 

Welcome to the Committee. 

STATEMENT OF MICHAEL J. BROWN, SENIOR VICE

PRESIDENT, LEGISLATIVE AFFAIRS, AMERICAN MEAT

INSTITUTE, WASHINGTON, D.C. 

Mr. BROWN. Mr. Chairman, thank you very much, and Members 

of the Committee. I appreciate the honor and privilege to appear 

here before you today. I will abbreviate my remarks but hope that 

my full testimony, written testimony, will be in the record. I would 

also like to thank my son, Dan, who has joined me today to offer 

support and to watch this Committee do its work. Thank you, Dan. 

And just to elaborate on Mr. Goldstein’s testimony, I want to 

point out to the Committee that we are also producing, consuming 

and exporting more meat today than we ever have before. 

AMI would like to express its appreciation to the Committee for 

holding this hearing on the critical issue of agricultural labor. This 

is one of the most important issues facing AMI members in our nation. It is clear that the employment and immigration laws that 

govern the hiring and employment process in this country are dysfunctional and in urgent need of reform. 

In the mid 1990s, AMI members in the Midwest had their meat 

packing operations disrupted when they were audited by the Immigration and Naturalization Service and informed that many of 

their experienced employees, who were vital to their operations, 

had provided fraudulent documents at the time of hire. 

Given these circumstances, many AMI members sought to more 

carefully scrutinize employment authorization documents, and, 

ironically, faced discrimination charges at the same time for being 

too vigilant in seeking to employ authorized workers. 

Employers are required to walk an impossible legal tightrope, 

due to the failures in the immigration laws to provide bright lines 

for compliance. AMI and its members took the initiative to address 

this problem by successfully urging Congress in 1999 to extend the 

scope of the basic pilot program beyond the original five states that 

were approved, to include the State of Nebraska, where many AMI 

members are located. 

This tool enabled a number of meat packing companies to enter 

into agreements with INS to participate in the basic pilot program. 

Nearly 5 years ago, AMI members lobbied to have the program expanded to all 50 states, allowing all industries and all meat and 

poultry companies the opportunity to use the program. 

The experience of AMI members participating in the basic pilot 

program has been mixed. While the electronic verification mechanisms of the program have screened out a number of unauthorized 

workers at the point of hire, the mere fact that the company is participating in the program deters many individuals from even applying for work. 

The program nonetheless is only partially effective. It does not 

solve the problem of identity theft. In addition, there are delays by 

DHS in updating its databases to include the most recent change 

62

in status of aliens. These delays can result in an employer receiving false information regarding the legal work status of an individual. 

Moreover, the basic pilot program does not have the ability to determine when an individual’s name and Social Security Number 

are being reported by several employers at the same time. Unfortunately the problem of identity theft is widespread, and, notwithstanding the extensive use of the basic pilot program by meat and 

poultry companies, it has resulted in continued disruption of AMI 

member companies. 

There have been a number of highly publicized raids of wellknown meat packing companies that are participating in the program, that have worked closely with DHS in attempting to comply 

with the law. The raids of these companies have been devastating, 

resulting in significant disruptions of their operations and in some 

cases, losses in the tens of millions of dollars. 

Unfortunately, the basic pilot program will continue as an inadequate system until Congress takes the steps to correct its deficiencies. 

Mr. Chairman, AMI believes it is imperative that Congress undertake the effort to improve the program now, as it is set to expire 

in September of 2008. We have less than a year to work on this 

problem. Extension and improvement of the basic pilot program, 

consistent with the following four principles, is among the American Meat Institute’s highest legislative priorities. 

One, individuals engaged in identity theft must be detected at 

the time of hire. It is essential that a biometric technology be included on documents to determine whether the person presenting 

a work authorization and identity document is in fact the person 

to whom the document relates. 

Two, the number of documents that an employer must accept for 

purposes of determining whether a person is authorized must be 

reduced. Currently, we have to accept one of any 29 document combinations. 

Three, DHS and the Social Security Administration must be 

given the resources to ensure that individual’s status changes are 

current so that verification checks will have real time accuracy. 

Four, employers that comply with the electronic eligibility 

verification requirements under the basic pilot program must be 

provided adequate protection from both the Department of Homeland Security enforcement actions as well as discrimination lawsuits. AMI urges the introduction of legislation this year which will 

achieve the above described objectives. 

Mr. Chairman and Members of the Committee, AMI and its 

members look forward to working with you to find an immediate 

legislative solution to the critical challenges that our broken immigration system poses to the meat and poultry processing sector. 

I will be happy to answer any questions that the Members of the 

Committee may have as time allows. Thank you very much. 

[The prepared statement of Mr. Brown follows:]

63

PREPARED STATEMENT OF MICHAEL J. BROWN, SENIOR VICE PRESIDENT, LEGISLATIVE

AFFAIRS, AMERICAN MEAT INSTITUTE, WASHINGTON, D.C. 

Mr. Chairman, Ranking Member, and Members of the Committee, thank you for 

the opportunity to appear before this Committee. My name is Mike Brown and I 

am Senior Vice President for Legislative Affairs of the American Meat Institute 

(AMI). AMI has provided service for more than 100 years to America’s meat and 

poultry industry—an industry that employs more than 500,000 individuals and provides more than $100 billion dollars in sales to the nation’s economy. 

AMI’s members include America’s most well-known meat and poultry manufacturers. Collectively, they produce more than ninety percent of the beef, veal, pork and 

lamb food products and seventy-five percent of the turkey food products in the U.S. 

Among AMI’s member companies, over sixty percent are small family-owned businesses employing fewer than a hundred individuals and some are publicly traded 

and employ tens of thousands. These companies operate, compete, sometimes struggle and mostly thrive in one of the toughest, most competitive and certainly the 

most scrutinized sectors of our economy—meat and poultry packing and processing. 

AMI would like to express its appreciation to the Committee for holding this hearing on the critical issue of agricultural labor. This is one of the most important 

issues facing AMI members. AMI has actively supported comprehensive immigration 

reform during the past several Congresses. The employment and immigration laws 

that govern the hiring and employment process are dysfunctional and in urgent 

need of reform. The lack of viable legal channels for workers to enter the U.S. to 

work in industries that have demonstrable shortages of U.S. workers contributes to 

the illegal immigration problem facing this country and restricts the growth of our 

economy. 

For employers in the nation’s meat and poultry industry, the Federal Government’s failure to enact legislation solving this problem is especially frustrating. 

AMI’s members have been in the forefront of the efforts to bring integrity to employment authorization verification process enacted by Congress in the Immigration Reform and Control Act (IRCA) in 1986. After it became apparent that the paper-based 

employment authorization process was woefully inadequate to screen out fraudulent 

employment documents, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996, establishing the Basic Pilot telephonic 

and electronic employment verification program. This program was voluntary and 

was intended to screen out fraudulent Social Security Numbers and alien work authorization documents provided by job applicants to employers at the time of hire. 

In the mid-1990’s, AMI members in the Midwest had their meatpacking operations disrupted when they were audited by the Immigration and Naturalization 

Service (INS) and informed that many of their experienced employees who were 

vital to their operations had provided fraudulent documents. These employers, in 

compliance with the paper-based employment verification procedures enforced by 

INS, were unable to screen out those who provided invalid work authorization documents. While AMI members typically were not cited by INS for violating the immigration laws, they had to terminate large numbers of employees in whom they had 

invested substantial training costs, they also suffered economic losses due to worker 

shortages. 

Given these enforcement efforts, many AMI members took steps to more carefully 

scrutinize employment authorization documents and, ironically, faced discrimination 

charges under the unfair immigration-related employment practice provisions of 

IRCA for being too vigilant in seeking to employ legally authorized workers. Needless to say, AMI members were and continue to be frustrated by the vice in which 

they find themselves in trying to comply with IRCA’s inherently contradictory provisions. Employers are required to walk an impossible legal tightrope due to the law’s 

failure to provide ‘‘bright lines’’ for compliance. 

AMI and its members took the initiative to address this problem by successfully 

urging Congress in 1999 to extend the scope of the Basic Pilot program beyond the 

original five pilot states to include the State of Nebraska, where many AMI members are located. This enabled a number of meatpacking companies to enter into 

agreements with INS to participate in the Basic Pilot program. 

Let me briefly describe how the voluntary Basic Pilot program works. The Basic 

Pilot recently has been renamed as E-Verify by the Department of Homeland Security (DHS), which now is responsible for administering it as the successor agency 

to INS. Participants are required to complete I–9 Forms for all newly hired workers. 

Upon receipt of identity and work authorization documents, employers seek confirmation of the documents through the pilot program’s automated system by entering employee information, such as a Social Security Number or alien registration 

document number, into the pilot website within 3 days of the employee’s hire. The 

64

program electronically matches that information against information in the Social 

Security Administration (SSA) database, and if an alien document is used, a match 

is attempted against DHS databases, to determine if the employee is authorized to 

work. The Basic Pilot then notifies the employer whether the employee is authorized 

to work. If the employee’s information cannot be confirmed, the employee is given 

several days to contact SSA or DHS to resolve any inaccuracies in his/her records 

and to contest the non-confirmation. Employers are required to terminate employees 

who do not contest or cannot successfully resolve their non-confirmation status. 

The experience of AMI members participating in the Basic Pilot program has been 

mixed. The electronic verification mechanisms of the Basic Pilot have screened out 

a number of unauthorized workers at the point of hire and the mere fact that a company is participating in the program deters many individuals from even applying 

for work. The program, nonetheless, is only partially effective. It does not effectively 

solve the problem of identity theft, through which individuals who have stolen the 

name and Social Security or alien document numbers from their rightful owners 

who are authorized to work use the stolen information to gain employment. The system cannot determine whether the person presenting the name and document number is the person to whom they relate. 

In addition, there are delays by DHS in updating its databases to include the 

most recent change in status of aliens. These delays can result in an employer receiving false information regarding whether an individual is or is not authorized to 

work. ‘‘Real time’’ updating of alien status information is critical to the effective 

functioning of the Basic Pilot program. It is costly and administratively burdensome 

for employers to hire and train an individual whom it believes is authorized to work, 

only to be later informed that a mistake was made and to have to terminate the 

individual. 

Moreover, the Basic Pilot program does not have the ability to determine through 

its access to the Social Security Administration’s (SSA) database when an individual’s name and Social Security Number are being reported by several employers at 

the same time, especially when the employers are not located in close proximity to 

each other. Such information should be more effectively acquired and used to target 

individuals seeking employment who are engaged in identity fraud. 

Unfortunately, the problem of identity theft is widespread and, notwithstanding 

the extensive use of the Basic Pilot program by meat and poultry processing companies, it has resulted in the continued disruption of AMI member companies. There 

have been a number of highly publicized raids of well-known meat packing companies, including AMI member companies, that are participating in the Basic Pilot 

program and that have worked closely with DHS in attempting to comply with the 

law. DHS apparently targeted these companies upon receipt of information that a 

number of employees had engaged in identity theft. The raids of these companies 

have been devastating, resulting in significant disruptions of their operations and 

losses in the millions of dollars. The use of the Basic Pilot program by law-abiding 

companies that went the extra mile to seek a legal workforce has not served them 

well. It will continue as an inadequate system until Congress takes steps to correct 

its deficiencies. 

Mr. Chairman, AMI is committed to improving the Basic Pilot program under 

which its members operate. We seek the support of the Members of this Committee 

in our efforts to extend and improve the Basic Pilot program so that it will better 

serve its intended purpose of screening out fraudulent documents and imposters 

using stolen identity and work authorization documents. It is imperative that Congress undertake this effort now, as the Basic Pilot expires in a year (September 

2008) and the problems associated with its failures are accelerating as DHS increases its worksite enforcement activities. 

Extension and improvement of the Basic Pilot program consistent with the following four principles is among AMI’s highest legislative priorities:

1. Individuals engaged in identity theft must be detected at the time of hire. 

The program must be improved to detect when there are duplicate active 

records in the SSA database evidencing that an employee’s name and Social Security Number are being used in multiple places at the same time. In addition 

to the current Basic Pilot program, employers should be allowed to participate 

on a voluntary basis in a separate verification program that uses a biometric 

technology to determine whether the person presenting a work authorization 

and identity document is in fact the person to whom the document relates. The 

technology exists and should be used in a pilot program targeted at identity 

fraud.

65

2. The number of documents that an employer must accept for purposes of determining whether a person is authorized to work and their identity must be 

reduced to avoid confusion and identity fraud.

3. DHS and SSA must be given the resources to ensure that individual status 

changes are current so that verification checks will have ‘‘real time’’ accuracy 

and avoid the delays and administrative burdens that accompany non-confirmation or incorrect confirmation of worker eligibility.

4. Employers that comply with electronic eligibility verification requirements 

under the Basic Pilot program must be provided adequate protection from both 

DHS enforcement actions, as well as discrimination lawsuits that may result if 

employees are terminated after employers have properly complied with program 

requirements.

AMI urges the introduction of legislation this year that will achieve the abovedescribed objectives by extending the Basic Pilot program for an additional 5 years 

beyond its current expiration date. As in past extensions of the Basic Pilot program, 

we anticipate that the legislation will enjoy broad bipartisan support. AMI believes 

that an improved program must remain voluntary until such time as Congress enacts broad comprehensive immigration reform that allows adequate legal channels 

for foreign workers when there are shortages of U.S. workers and effectively addresses the undocumented worker population already working in this country. 

As with the current Basic Pilot program, we believe that new legislation should 

apply to only the persons who are newly hired after the program is enacted. Consistent with the principles that we have outlined, we also feel that it is imperative 

that the Basic Pilot program provide, in addition to its current verification model, 

an option that employers may elect that has a biometric component. Through biometric technology, fingerprint, retina and other comparisons can be made at the 

time of hire that will enable employers to ascertain the identity of persons presenting documents to ensure that they are who they say they are. To the extent 

there are concerns about the government’s capacity to administer such a system on 

a universal level, a voluntary system based on biometrics would provide an opportunity to test and perfect such a system on a more limited basis in anticipation of 

broader application in the future. 

Mr. Chairman and Members of the Committee, we appreciate very much the opportunity to testify this afternoon. We look forward to working with you to find an 

immediate legislative solution to the critical challenges that our broken immigration 

system poses to the meat and poultry processing industry. While we recognize that 

immigration reform is inherently controversial and politically challenging, we believe that your support of the extension and improvement of the Basic Pilot program 

so that it more effectively solves the problem of illegal immigration in the work 

place is sound public policy. It also is the fair thing to do for those employers that 

have gone the extra mile to comply with our laws by using the Basic Pilot program, 

as well as consistent with the will of the American people who want our laws effectively enforced.

The CHAIRMAN. Thank you very much, and I want to thank the 

panel for that excellent testimony. And we will move to questions, 

and I am going to yield my time to the gentleman from Florida, 

Mr. Mahoney. 

Mr. MAHONEY. Thank you, Mr. Chairman. And thank you, panelists, for being here today discussing this important issue. 

You know we have some very interesting statistics that Dr. Holt 

provided us at the very beginning in terms of the magnitude of the 

problem, the number of illegals that are working on our farms and 

in our processing plants, and the dependency of the whole industry 

on an illegal workforce. 

I guess my first question is that, about a month ago, Social Security Administration and Department of Homeland Security decided 

that they were going to change their policy and start to enforce the 

No-Match letters. In my district, this created quite an uproar on 

the part of my citrus growers and my specialty crop folks. That was 

the impetus for this hearing today because of the anger that my 

growers and farmers felt about this change in policy. 

66

And I would be interested to hear from each of you what your 

view would be if the Administration moves forward on this decision 

of change in policy. Dr. Holt? 

Dr. HOLT. Congressman, clearly the mismatch regulation will 

have a tremendous impact because the statistics speak for themselves. And unless there is an option for employers to obtain legal 

workers, then enforcing the law with respect to illegal workers simply leaves them with no alternative. 

And so it is kind of as simple as that in my view. It might be 

interesting. The latest statistics I have seen are that 17 percent of 

all of the mismatches in the United States are attributable to agricultural employers. You compare that with the fact that 1.2 percent 

of the workforce is in agriculture, and it gives you an idea of the 

magnitude of the problem. 

Mr. MAHONEY. Thank you, Dr. Holt. Mr. Stallman? 

Mr. STALLMAN. Well, I will certainly concur with what Dr. Holt 

said. In our submission, we provided a letter that we sent to DHS 

about the middle of August, detailing all of the problems with that 

including some suggestions for some changes to make the rule 

work better but——

Mr. MAHONEY. Will this be an immediate problem? 

Mr. STALLMAN. Yes, as soon as it is fully implemented, it will be 

an immediate problem. 

Mr. MAHONEY. Okay, and the result of which would be what? A 

lack of——

Mr. STALLMAN. Well, everything from a lack of workers to legal 

prosecution. I mean the range of things that will occur for producers are all in the negative category. 

Mr. MAHONEY. Mr. Wicker? 

Mr. WICKER. It would have zero impact on our growers. Our 

growers are in the H–2A Program. Their workers are legal. 

Mr. MAHONEY. And so all of your growers fall into the 2 percent 

of the American——

Mr. WICKER. Correct. 

Mr. MAHONEY. And the H–2A Program works perfectly fine for 

your growers? 

Mr. WICKER. No, I would not say that it works perfectly fine. 

Mr. MAHONEY. I have to tell you. I don’t know too many people 

that have participated in the H–2A Program in my district who 

think that it is a very good program. 

Mr. WICKER. It is a very expensive and painful program, and the 

growers are afraid to use it because it is too expensive. And they 

are afraid they are going to get sued. 

Mr. MAHONEY. Okay, Mr. Herring? 

Mr. HERRING. It would probably be one of the things that starts 

the disruption. I mean people will have difficulty having the labor 

on the farms and in the processing and market aspects of their 

business. And they will begin to make decisions on what to do next. 

Mr. MAHONEY. Mr. Goldstein? 

Mr. GOLDSTEIN. In addition to what has been said already, it is 

going to exacerbate some developments. More and more employers 

are probably going to resort to hiring farm labor contractors to hire 

their farm workers in an effort to say the labor contractors are reVerDate 0ct 09 2002 10:21 May 05, 2009 Jkt 041481 PO 00000 Frm 00070 Fmt 6633 Sfmt 6601 I:\DOCS\110-30\48999.TXT SOLEM PsN: REBEKA
67

sponsible for dealing with immigration; ‘‘I don’t employ any of 

those farm workers on my fields.’’

Mr. MAHONEY. Right, so they are going to move the liability to 

somebody else who is willing to take on the legal risk? 

Mr. GOLDSTEIN. Right. I mean while the workers go more and 

more underground and live in fear, and families get broken up, and 

the farmers lose their workforce. 

Mr. MAHONEY. Mr. Brown? 

Mr. BROWN. Mr. Mahoney, it would have zero impact on our 

plants, but I think it just highlights the fact that this 21-year-old 

immigration law is broken and needs fixing. 

Mr. MAHONEY. Now, one of the questions—we are running out of 

time here. But one of the other questions is that there are a lot of 

people that are excited about doing AgJOBS, and if we are serious 

about securing the country’s borders, wouldn’t AgJOBS actually be 

just another highway for people to come into this country initially 

legally: like they are doing through JFK Airport right now on tourist visas and end up, when they have the opportunity to get a better job in the construction trades or the housing industry to make 

more money. It would just be an opportunity for them to opt out 

of the program, so to speak, and go work some place else illegally? 

Mr. Stallman? 

Mr. STALLMAN. We view the AgJOBS bill as being a partial solution to some of the issues we are facing. Short term, you are right 

in the characterization that over the longer term from 3 to 5 years, 

those workers which would get blue cards would transition into 

green cards, and then move into other employment sectors. That 

was the result that we experienced with the 1986 law, so we would 

expect the same thing to happen. So it is sort of a short-term solution, but we need a guest worker program for the long term once 

we get through that initial period. And that is why we think the 

H–2A Program, if significantly reformed, could play that role. 

Mr. MAHONEY. So what you are saying is if we do AgJOBS, the 

only way that you could see that it would work is that there would 

have to be a clear path to citizenship going from the AgJOBS to 

a green card situation in order to prevent people from——

Mr. STALLMAN. Well, I am not sure about the citizenship part of 

it. I don’t know that that would solve the problem. 

Mr. MAHONEY. And the green card. 

Mr. STALLMAN. The issue is that the blue card workers would be 

required to remain in agriculture, unless they move into green 

card, they can go into other industries. And we have no further avenue for workers to come after that. 

Mr. MAHONEY. Okay, Mr. Wicker, one quick question for you. I 

mean one of the concerns that I have about what I see going on 

in the Administration as a result of a lot of these policies regarding 

homeland security is a tax, a hidden tax on business. Do you think 

it is the responsibility of your growers in North Carolina to have 

to be responsible for immigration and naturalization in your industry in terms of being able to monitor and manage these problems? 

Mr. WICKER. No, I don’t, but that is not an issue for us because 

all of our growers come on H–2A visas and are legal. 

Mr. MAHONEY. And how much does that cost your growers to 

participate in H–2A? 

68

Mr. WICKER. It varies from farm to farm, but I think the range 

is going to go from $11 to $14, $15 an hour when you factor in the 

wage rate, the housing, the transportation, the visa cost. It goes on. 

Mr. MAHONEY. And do you think that the cost that you are bearing to participate in the program is something that your growers 

should be responsible for? 

Mr. WICKER. Well, I think we have to pay workers for working, 

but I think that the wage and benefit package is so expensive that 

our growers are going to quit using the program. And they are either going to turn back to illegal workers, or they are going to quit 

production all together. And I think both those——

Mr. MAHONEY. So what you are saying is that given the options 

today, that it is the best option. But in a perfect world, do you 

think that you your growers should be responsible for the immigration policies of the United States? 

Mr. WICKER. No. 

Mr. MAHONEY. How about you, Mr. Herring? What do you think, 

being from New York State? 

Mr. HERRING. Well, being from New York State, but not being 

the labor expert that the others are, here on the panel, I don’t have 

a real good answer for what the solution is. I do know that when 

it comes to what happens on the farm from a financial standpoint, 

and what they have to deal with in that market, this will be a disruption. And it will be very difficult for them to get through if 

there was a labor shortage, and it happened immediately. 

Mr. MAHONEY. Yeah, just before I turn it back over, I would just 

like to say I appreciate you taking these questions. And I just want 

you to know that there are different kinds of taxes, and this immigration issue has become a hidden tax on agriculture. 

And when I take a look at the profitability of the agriculture industry, and I take a look at the risks of the people that are participating in it, I think it is unreasonable for the Federal Government 

to ask the industry to bear that burden. And with that, Mr. Chairman, I will turn back my time to you. 

The CHAIRMAN. I thank the gentleman. I am pleased to recognize 

the Ranking Member, Mr. Goodlatte, from Virginia. 

Mr. GOODLATTE. Thank you, Mr. Chairman. Back when the last 

amnesty bill was passed by the Congress in 1986, I was an immigration lawyer, and at the time, I was pretty appalled and concerned by the results that occurred, which I think we are still paying for today. In fact, what Mr. Stallman just indicated was indeed 

the case for many farmers. What they found was that if they had 

an individual who was working on that farm, sometimes for many 

years, and they suddenly were able to get a green card, even 

though they had entered the country illegally, they were off to find 

employment in sectors of our economy where the work is not as 

hard and is not as difficult as farm work is. 

And yet, we also know that this is a tremendous opportunity for 

foreign workers. I don’t think there is anybody in this room, with 

maybe one or two exceptions, who doesn’t acknowledge that it is 

very, very hard to find sufficient American workers to do what 

needs to be done on our farms. This is tough, hard, backbreaking 

work, and Americans often choose many, many other options. 

69

So I have never been a fan of the Adverse Effect Wage Rate that 

is in the H–2A Program because that program really sets an artificial barrier to its usage, and I am very proud of the fact Mr. Wicker and a number of other people do use it. But they constitute only 

about 2 percent of farm workers in the country. 

And so it seems to me to address this problem is to have a guest 

worker program that works, not one that provides what has been 

referred to as a pathway to citizenship. The foreign worker benefits 

tremendously because the wages that are paid under any wage rate 

that will competitively draw them to work, in my legislation, is the 

prevailing wage that I think makes the most sense. But no matter 

what that wage rate is, it is far superior to what most of these individuals are getting in the country from which they have come. 

And if you had a program that worked where they could come 

into the country for the better part of a year, maybe even extend 

that so 2 years could be linked together, but then return to their 

own country for 20 or 25 percent of the time and then come back 

again, many would like to avail themselves of that. Their native 

language and culture and customs, the cost of living, their extended family are all back home. 

But under the current situation with an unworkable H–2A Program and the tremendous need that we have in this country for agricultural workers, they come across the border illegally, or they 

may come legally and then overstay their visa. I suspect most of 

the agricultural workers have come across the border illegally. 

And then they are not going back again. In fact, they are going 

to bring their family with them because they are not planning on 

ever trying to do that again. It is very risky. It is expensive to hire 

the coyotes that bring them into the country. They risk dying of 

thirst in the desert or suffocating in the back of a tractor trailer, 

and they are not going to do it again. 

We have developed this underclass in our society that has become a security risk. It is not advantageous to them, but it is also 

not a good thing for our society. So it seems to me that the best 

way to solve this problem is to correct the deficiencies in the current H–2A Program and not to reinvent it. 

So, Mr. Goldstein, if I might ask: The H–2A provisions the 

AgJOBS bill would maintain nearly all of the current requirements 

with which the H–2A employers must comply, such as paying mandatory guaranteed wages far above those prevailing in the area, 

providing free housing to workers, and guaranteeing payment for 

75 percent of the work hours promised at the time of hire, to mention a few. 

H–2A workers are not particularly different from other farm 

workers, except that they came here legally. But under the proposal you support, a million legalized farm workers would be afforded none of those benefits, which you deem to be in need of protection because the law would still require that only H–2A employers provide such things. 

It seems that if undocumented workers have been exploited for 

years by low wages and a lack of safe housing and other protections, you would want to ensure that inferior pay and working conditions would be addressed before they are legally available to the 

same growers you contend exploit them. So why does the proposal 

70

you support require only H–2A employers to provide such additional protections? And would you oppose a plan that would convert 

illegal workers into H–2A workers instead of permanent residents? 

And if so, why? 

Mr. GOLDSTEIN. Thank you for the opportunity to answer a series 

of very good questions that require some complex answers, but the 

bottom line is this. First of all, we could have a country in which 

we decide that a lot of low-wage industries really don’t attract 

many Americans anymore, and we could have a long list of occupations that could add up to several million people doing those jobs. 

We in America need to ask ourselves—let us say it is five million 

for all those occupations including agriculture, but could be building service workers, whatever. It could be ten million people. Do 

you want——

Mr. GOODLATTE. But let me note a difference between building 

service workers and agricultural workers. Building service workers 

are not affected by international competition that American farmers and ranchers have to compete in an international environment. 

And therefore, you could make a much stronger argument that the 

pay scale that is offered in industries that are not affected by this 

can be treated very differently under the law than in industries 

like agriculture where it is clear that almost any amount you pay, 

you can’t get the workers for this very hard, difficult, back-breaking work. 

Mr. GOLDSTEIN. Okay, my question is this. Do we want millions 

of people in this country who may only work for the one employer 

that got them the visa for that job and can only stay in that job 

and have to go home at the end of that job? Because that is the 

way the H–2A Program works. You have no ability to switch employers, and you are dependent upon the employer to give you that 

visa in the following year. 

Mr. GOODLATTE. Well, let me make——

Mr. GOLDSTEIN. And as a result of being so dependent upon the 

employer to get that visa, you are really not capable of asking for 

more money in wages. And you never get the right to vote because 

under H–2A right now, there is no path to permanent immigration 

status or to citizenship. Do we want millions of people in this country to have a non-immigrant guest worker status where they never 

get the right to vote? 

And as far as the Adverse Effect Wage Rate, the Adverse Effect 

Wage Rate under the H–2A Program, the phrase comes from the 

statute. The law says you shall not bring in guest workers under 

wages and working conditions that will adversely affect similarly 

employed U.S. workers. Between 20 percent and 40 percent of farm 

workers in this country are legal immigrants or U.S. citizens. 

Mr. GOODLATTE. Let me——

Mr. GOLDSTEIN. They make a certain amount of money. 

Mr. GOODLATTE. Let me cut you off right there. 

Mr. GOLDSTEIN. Two more sentences. 

Mr. GOODLATTE. Mr. Goldstein, now let me——

Mr. GOLDSTEIN. Two more sentences. 

Mr. GOODLATTE. No, my time has already expired. I am, by the 

good graces of the Chairman, going to make this point. The situation you described is the situation that we have right now because 

71

98 percent of the workers are working here illegally in the conditions that you describe. Improvements to the guest worker program 

will assure them that they are getting prevailing wages, will assure 

them that they are treated fairly in the process. And what you 

have described does not address the concern that Mr. Stallman just 

raised, which is that if you put all of these people who are working 

right now on a pathway to citizenship, you are then going to be 

very shortly confronted with the problem of replacing all of them. 

Mr. GOLDSTEIN. Every commission that has looked at this 

issue——

Mr. GOODLATTE. This is my time, not the gentleman’s. 

Mr. GOLDSTEIN. Every commission and government study 

and——

Mr. GOODLATTE. Mr. Chairman. 

Mr. GOLDSTEIN.—academic study has concluded for the last 70 

years that the way to stop the flow outside of agriculture is to improve wages and working conditions to stabilize the workforce. We 

are a capitalist country. If you are afraid that the workers will go 

to other industries, then that means that employers in agriculture 

need to compete for those workers by improving wages and working 

conditions. 

Mr. GOODLATTE. We are allowing people into our country in what 

is a great opportunity for them to earn far more than they earn in 

their own country, and they are happy to take those jobs. And they 

would be happier still if they had the ability to transit across our 

border with a secure identification system and not be faced with 

the current environment that they are in and our economy is in. 

Mr. Goldstein, your time is finished, and I am going to finish up 

my time so the Chairman can go on to recognize another individual. But the situation that you describe is an unworkable one 

because it will increase the flow of individuals coming into this 

country. It will not decrease it because you will transit people out 

of this work area. 

Now, the law is the same for everybody. If you come into this 

country and you are a college student, and you then subsequently 

gain a new job skill or you marry a United States citizen or you 

have a family member that can petition for you, you can then transit out of that. But we do not create a special category that says 

if you have been working here for a limited period of time, you can 

then suddenly avail yourselves of things that other people, who 

have lawfully entered this country and sometimes wait in line for 

decades to accomplish, simply by virtue of the fact that you originally came here illegally and now you want to transit out. 

We need to address this problem from the standpoint of our 

farmers and ranchers. We need to address it from the standpoint 

of the workers being treated fairly under a legal, workable system. 

And we need to address it from the standpoint of what is in the 

best national and security interest of the country. And I don’t think 

your approach does it. Thank you, Mr. Chairman. 

The CHAIRMAN. I thank the gentleman. And I am pleased to recognize one of our Subcommittee Chairmen, Mr. Etheridge, from 

North Carolina. 

72

Mr. ETHERIDGE. Thank you, Mr. Chairman. Mr. Chairman, I 

would ask unanimous consent that the document from Ms. Herseth 

Sandlin be entered into the record. 

The CHAIRMAN. Without objection, so ordered. 

[The document referred to is at the end of the hearing on p. 136.] 

Mr. ETHERIDGE. Thank you, Mr. Chairman. Let me thank you for 

holding this hearing and for our panelists for being here. This is 

critically important certainly to this whole country, and very much 

so to my district and my state. 

Mr. Stallman, I appreciate you highlighting the problems our 

producers are facing in making and planning a decision because of 

a need of labor. I have probably one of the most diverse agriculture 

districts in America. Sweet potatoes, poultry, pork, watermelons, 

you name the products, we have them to include all the things that 

you are here with, tobacco, et cetera. My question is this though. I talked with a fellow that grows a 

lot of cucumbers. We do a lot of pickling right outside the district. 

Is it fair to say that what we do about immigration and labor reform, whatever you call that, really presents a choice as to whether 

we want to grow food here in the United States or allowing imports 

as we do with oil? Would you elaborate on that point please, sir? 

Mr. STALLMAN. Well, specifically with respect to pickling cucumbers, it is my understanding that plants are having to import——

Mr. ETHERIDGE. That is correct. 

Mr. STALLMAN.—cucumbers from India at this point. 

Mr. ETHERIDGE. That is correct. 

Mr. STALLMAN. I was discussing that subject 2 weeks ago, and 

that is what we are facing if we don’t provide adequate labor for 

our farms and ranches. Our own study shows that we will have 

that production moving outside the borders of this country, and we 

will be sourcing product from outside the borders of this country. 

And I am not sure the American citizens are really ready for that 

to happen. 

Mr. ETHERIDGE. Well, I wanted to get that on the record because 

I am not sure people understand what is at stake. Mr. Wicker, 

since you are from my district and I think you indicated that we 

have one of the highest state-to-labor numbers in the country. 

My question is as one of the highest users of it, you testified earlier that your association facilitated the employment of about 7,500 

legal H–2A workers for the seasonal employment of 2007. How 

does this number compare with previous years? 

Mr. WICKER. It has dropped from about 1,100 growers, 10,000 

workers in 2001, and the problem is that every time the wage rate 

goes up or we provide more benefits, more growers quit. They quit 

production, or they move back to illegal workers to source their 

labor. 

Mr. ETHERIDGE. Let me follow up very quickly because I have 

one more question, Mr. Stallman. And you would understand this 

better than anybody sitting at the table. Some of those deal with 

tobacco, and a lot of that has gone to mechanization. Now, I know 

a lot of the other—because a farmer may have sweet potatoes; he 

may have tobacco; he may have cucumbers; he may have a variety 

of things. Would that have had any impact because the mechanization in one area or not? Do you know that, Mr. Wicker? 

73

Mr. WICKER. I am sorry. I did not understand your question. 

Mr. ETHERIDGE. Well, if you are a farmer, a lot of our farmers 

in North Carolina and certainly in our district may have cucumbers——

Mr. WICKER. Yes. 

Mr. ETHERIDGE.—tobacco, sweet potatoes, peanuts, a host of 

those where they would use the same laborers. Has the fact that 

a lot of that has gone to mechanization had any impact on the H–

2A numbers? 

Mr. WICKER. I would say that it obviously has to have some impact, but not significantly. 

Mr. ETHERIDGE. Okay, thank you. Mr. Stallman, you touched on 

something that I heard recently from a number of our folks at 

home, and when I talk about the farm, please understand I am 

talking about that whole stream all the way to the packing operation because it is a continuous stream. 

Regarding the No-Match letters that they have heard of from 

producers getting. They are not so clear about what they are supposed to do when they receive one of them, and it has them quite 

alarmed. Could you elaborate on this a little further? You touched 

on it earlier. Do you have any specific examples of this occurring 

across the country? Because you would be in the unique position 

to share that with this Committee. 

Mr. STALLMAN. Well, with regard specifically to the proposed 

DHS No-Match letters, right now, that is in litigation, and so we 

haven’t had to face the situation in the country under the new regime where employers will be expected, in essence, to become enforcement agents to a certain extent on the immigration issue 

when they receive these No-Match letters. 

The thing that really concerns us is the liability that exists for 

not following the DHS procedures when they receive the No-Match 

letter. It puts them in jeopardy because if they follow them and discharge an employee on the basis of that No-Match letter after they 

go through a series of steps, then they are subject to being sued 

by employment attorneys on the basis of a wrongful discharge. And 

so I mean it is catch-22. You can’t win, and that is what we are 

concerned about. 

The full impact hasn’t hit yet. It won’t until we actually get into 

that after the litigation is settled. But when it hits, I suspect it is 

going to have a broad reaching impact that will be negative for producers. 

Mr. ETHERIDGE. I know my time has expired, but with the Chairman’s indulgence, I want to ask Dr. Holt one question because I 

think it gets to the heart of some of this. 

You touched in your testimony, and in your written testimony, 

about no matter what we do here, we still have a number of jobs 

out there that we don’t have people to fill in agricultural, in that 

whole vast agricultural area. Would you, for the record, expand on 

that just a little bit more, please, sir? 

Dr. HOLT. Well, I might point out that this is an economy-wide 

problem, not just an agricultural problem. 

Mr. ETHERIDGE. I understand that, but if you——

Dr. HOLT. We are simply not—the other places it will be exacerbated in——

74

Mr. ETHERIDGE. Agriculture. 

Mr. HOLT.—the rate of job creation in this country. We are creating jobs in this country more rapidly than we are, if you will, creating workers to fill the jobs through natural birth and through 

legal immigration. And, in fact, that has gone on long enough now 

that we have probably somewhere in the magnitude of ten million 

more jobs in this economy than we have native-born and legally admitted workers to fill them. 

And every year, that continues. Secretary Gutie ́rrez the other 

day pointed out that the growth in the labor force currently is 

something like 0.2 percent a year. Our average rate of job creation 

is 1.2 percent a year. Now, it is first grade arithmetic to subtract 

0.2 from 1.2, and you have a shortfall. And that 1 percent shortfall 

amounts to over a million jobs a year, so we are creating more than 

a million jobs a year more than the people that we have to fill 

them. 

I haven’t heard anybody in Congress advocate negative economic 

growth as the solution to the immigration problem. Therefore, the 

only other way—there are only two places these workers can come 

from—natural birth and immigration. We are simply going to have 

to have realistic immigration policies to allow people to fill these 

jobs. 

Mr. ETHERIDGE. Thank you, Dr. Holt. I appreciate it. I yield 

back, Mr. Chairman. Thank you. 

The CHAIRMAN. I recognize the lady from North Carolina, Ms. 

Foxx. 

Ms. FOXX. Thank you, Mr. Chairman, I appreciate it, and I appreciate very much particularly Mr. Wicker being here from North 

Carolina to help us understand this problem better. 

I want to get a clarification from you because so much of what 

we have heard is that the H–2A Program is a good program. It 

works, but there are problems with it administratively, and I want 

to get something clear from you. 

You said that—my understanding is in the H–2A regulations, 

transportation reimbursement is already stipulated as being due to 

the worker upon completion of 50 percent of their contract. But in 

your point number three, you said a crucial change for the H–2A 

Program that inbound transportation should be reimbursed upon 

the completion of 50 percent of the contract. 

Since the regulations already stipulate that it is due upon completion of 50 percent of the contract, what exactly are you saying 

that needs to be changed in the way it is being administered? 

Mr. WICKER. We were sued by lawyers several years ago under 

the Fair Labor Standards Act, and their legal argument is that we 

are required to reimburse these costs to the worker during the first 

week to make sure that it doesn’t cut in to their minimum wage. 

And so activist lawyers pursue changes through litigation, and 

while the regulations clearly state that transportation reimbursement is due at 50 percent of the contract period, the courts have 

held that growers have to reimburse it in the first week. And that 

is not consistent with the Department of Labor’s enforcement posture over the last 20 years. We have been investigated since 1989 

every year by wage and hour auditors, and we have never been 

cited for failure to pay the wages under this legal theory. 

75

And we have been asking for an opinion letter from the U.S. Department of Labor since 1994. We initially asked for that through 

Congressman Lancaster’s office, and so the courts have held something different than the Department of Labor. And it has increased 

our growers cost by about $200—well, $350 per worker. 

Ms. FOXX. Mr. Chairman, one more quick comment. Having 

learned a lot about the H–2A Program, having used the H–2A Program a long time ago in my own family business and being familiar 

with Mr. Yates and other people who—Mr. Yates is going to testify 

shortly about the program. Would it be fair to say that we could 

help solve a lot of the problems that we are having with matching 

willing workers to willing employers if we would simplify this program and make it a lot easier for employers to use. Could you see 

us bringing many of these people who are here illegally now into 

the program as Ranking Member Goodlatte has recommended? Do 

you see that helping us fill that tremendous gap? And having a 

program that protects workers. I want a program that protects the 

people who come here to work. I want to treat them fairly and give 

them an opportunity for this. Do you think we can make it happen? 

Mr. WICKER. Yes, Congressman, we can. I agree. I want to protect workers too. Our workers are legal so they are not afraid to 

talk to lawyers or to union representatives or to worker advocates. 

Illegal workers are afraid to talk, but growers are afraid. Growers 

are afraid to use this program because they don’t want to get sued. 

And they don’t want to go to court, and so, yes, the answer to your 

question is if we make improvements, growers and workers will 

benefit from a better program. 

Ms. FOXX. Thank you, Mr. Chairman. 

The CHAIRMAN. I thank the gentlelady. The gentleman from California, Mr. Baca. 

Mr. BACA. Thank you very much, and thank you, Mr. Chairman, 

for having this hearing today, which I feel is very important to a 

lot of us as we look at the needs of our agriculture in reference to 

jobs. I think I have everything that is going on. Excuse me a second. 

The CHAIRMAN. Well, we are short of time here, and we have to 

go, folks. 

Mr. BACA. Yes, let me ask this quick question of the panelists 

that are here right now. And one of the questions that I want to 

ask—and I know because of the bullying, the fear that has been 

going on in the creation of the immigration issue by a lot of the 

Republicans. 

And they have been creating fear amongst many individuals, and 

it has been a bully syndrome that they have done. If we didn’t have 

the immigration crisis that they have created right now or the 

problems, and we would just allow human beings wanting jobs to 

come out and apply for jobs, would we still have—if we didn’t have 

all of this, would we still have the labor crisis? I would like to start 

with Dr. Holt. If we just allowed farmers and others to hire individuals without any of these other kinds of regulations in meeting the 

demands of our labor needs, would we be able to do that? 

Dr. HOLT. Essentially that is what is happening now with 98 percent of the workforce. Only 2 percent of it is coming through the 

regulated program. But we have to recognize that there are——

76

Mr. BACA. I am saying the law is in place. You know, we don’t 

have to worry about whether you are legal, illegal. We are just 

talking about having bodies, people, to harvest our crops. Would we 

be able to have the labor force that is necessary if we didn’t have 

all of these bully syndromes that are still there right now? 

Dr. HOLT. We would not be able to have that labor force without 

workers coming from outside the United States, and that raises the 

security issues that require a structure for these workers to come 

into the United States legally so that we know who they are. 

Mr. BACA. Okay, thank you. Let me ask this quick question if I 

can of Mr. Goldstein. We are hearing a lot of complaints today 

about the H–2A Program. What do farm worker advocate’s think 

about the way that H–2A is being administered, the program? 

Mr. GOLDSTEIN. Well, we have a lot of concerns about the way 

the H–2A Program operates. In our view, the Department of Labor 

consistently approves H–2A applications for employers when U.S. 

workers have applied for those jobs, that is legal immigrants or 

U.S. citizens have applied for those jobs, and the employers turn 

them away because they prefer guest workers. And the Department 

of Labor still certifies them and allows them to bring in guest 

workers. We have concerns that the Department of Labor routinely 

approves job offers that violate the requirements of the H–2A Program by not offering the wages and working conditions required. 

We think there needs to be a lot more oversight and enforcement 

of the H–2A Program. Our view is that the wages are not too high. 

In fact, they are too low. H–2A wage rate, all it is is you have to 

pay last year’s average hourly wage rate paid to field and livestock 

workers combined, non-supervisory farm workers. It is just the average. By definition, an average means some employers are paying 

more, and some are paying less. 

If you claim that you can’t find any U.S. workers to work for you, 

shouldn’t you be competing with some other employers that are 

paying more before you are allowed to bring in foreign workers 

based on a labor shortage? 

The bottom line is this: AgJOBS contains a compromise that we 

can live with. It is very hard fought. There is a lot of controversy 

to it. There are a lot of concessions, that both we made and employers made. And some people want more. They just say, ‘‘It is not 

good enough for the employers. We want the wages even lower. We 

want less protections.’’

AgJOBS is a balance we can live with and so can most of the 

grower groups. That is what we should do. 

Mr. BACA. Mr. Stallman, one quick question. Can machines replace human beings in doing the job? 

Mr. STALLMAN. Well, I am a believer in technology, and I believe 

in the long term that could be the case. There is a question of cost. 

And frankly that is what the industry will be driven to if we are 

going to maintain an industry here if we don’t have an adequate 

guest worker program. But right now, that is not the case. 

Mr. BACA. Would it be cost effective if we went in that direction? 

Would we be able to harvest and pick the crops versus a human 

being that notices it, picks it up, versus a machine that may destroy it? 

77

Mr. STALLMAN. Maybe over the long term it could be cost effective but not anywhere in the near term. 

The CHAIRMAN. Gentlemen, I have to go vote, or we are going to 

miss it. So I thank the gentlemen. Panel I, I am going to have to 

ask you to stay because there are some Members that want to ask 

questions if that works for you. We only have two votes, so we 

should be back shortly. 

[Recess.] 

The CHAIRMAN. The Committee will come back to order. I recognize the gentleman from Michigan, Mr. Walberg. 

Mr. WALBERG. Thank you, Mr. Chairman. I guess it pays to be 

a good student and get back to class early after you have missed 

the first part of it. I apologize if, due to the fact of missing preceding section here, that some of these questions may have been 

addressed. But these were concerns that we have taken from constituents on this issue and would like to address them as well. 

The first question I would ask, and let me ask that to Dr. Holt. 

Mechanization on farm operations has improved greatly all that 

goes on in agricultural life. For the record, why is hand labor still 

of such great importance in the general agriculture community? 

Dr. HOLT. Well, you are right. Mechanization in particular, and 

various labor productivity enhancing technologies, in general, have 

been adopted at a very rapid rate in agriculture. Labor productivity 

in agriculture, even in the current environment, has been increasing at a rate equivalent to, and in many cases in excess of, labor 

productivity in the nonagricultural industry. 

But there are many jobs involved with growing plants and very 

perishable commodities that still require the careful attention of 

the human hand, I guess is about the best way to describe it. And 

while there are technologies that are being worked on even for 

those activities, for a lot of tree fruit harvesting activities, strawberries, asparagus, and so forth, we are simply not there yet and 

may never get there in terms of mechanizing those kind of activities. 

I would also point out, however, that even if we do mechanize, 

that doesn’t necessarily solve the problem. There is nothing more 

mechanized than the combining of grain, and yet the entire grain 

crop in the Great Plains States, all the custom combine crew workers are alien workers coming into the United States under the H–

2A Program. That is one of the bigger users of H–2A. So even when 

you do mechanize, that doesn’t necessarily solve the problem. 

Mr. WALBERG. Okay, thank you. Second question: Let me address 

this to Mr. Stallman. In the State of Michigan, many of, let us say 

my district in Michigan, which is probably arguably the most diverse agricultural area of the State of Michigan. Many of the producers there are frustrated significantly, to say the least, with the 

H–2A Program. What core provisions within the program need to 

be addressed in order to make the program work; and in fact, even 

more than just work? A program that would give incentive to agriculture and farmers and agricultural producers using the H–2A 

Program? 

Mr. STALLMAN. Well, that list is long, but we do believe that H–

2A could be a viable program for the long term if we made significant changes. The first is reverting to a Prevailing Wage as opVerDate 0ct 09 2002 10:21 May 05, 2009 Jkt 041481 PO 00000 Frm 00081 Fmt 6633 Sfmt 6601 I:\DOCS\110-30\48999.TXT SOLEM PsN: REBEKA
78

posed to the Adverse Effect Wage Rate. We need to expand the coverage, and particularly dairy doesn’t qualify in some states as seasonal work. And there is a lot of need for labor on dairy farms. Just 

less bureaucracy, all the steps that a producer has to go through, 

and the timelines, make it very difficult to get the labor when they 

need it under the H–2A Program. 

And greater flexibility, and just one example of that would be 

using a housing voucher instead of mandated housing. You know, 

solve the problem but provide some flexibility to do it, and those 

are just some things. 

One of the real issues for border states, which perhaps doesn’t 

affect Michigan as much in this regard though, is the commuter 

program where workers come across the border on a daily basis to 

work and go back, such as in Arizona. That flexibility to allow that 

kind of work needs to occur also. 

Mr. WALBERG. Okay, thank you. Thank you, Mr. Chairman. 

The CHAIRMAN. I thank the gentleman. The gentleman from Colorado, Mr. Salazar. 

Mr. SALAZAR. Thank you, Mr. Chairman. I don’t know if some of 

these questions were asked. I had to step out for a little bit. But, 

Mr. Wicker, in your testimony, you stated that you were fine with 

some of the provisions of AgJOBS, however you were concerned 

about amnesty. Could you define ‘‘amnesty’’ or your definition of 

‘‘amnesty’’ to me? 

Mr. WICKER. I really don’t support any of the provisions of 

AgJOBS. We would like to see the prevailing wage, less litigation, 

and less bureaucracy. 

Mr. SALAZAR. Could you define ‘‘amnesty?’’ You mentioned that 

amnesty is something that you couldn’t support? 

Mr. WICKER. Well, I am not prepared to define ‘‘amnesty.’’ That 

is a big part of the public debate, but I can tell you that amnesty 

doesn’t put workers on the farm to harvest crops that we can feed 

our country. 

Mr. SALAZAR. Well amnesty to me, and when you look at the definition in the dictionary, it means total forgiveness for a wrongdoing 

of some kind and—I know that in the STRIVE Act, for example, 

there are issues there that talk about heavy fines for those who 

have broken the law, meaning that they would go back to the back 

of the line if there is a path to citizenship. To me, that is not amnesty, but that is where the big debate comes in is how you define 

amnesty. 

Mr. Goldstein, could you comment on my question, please? 

Mr. GOLDSTEIN. Yes, thanks. We obviously think that ‘‘amnesty’’ 

is not a word that applies to AgJOBS. Under AgJOBS is the earned 

legalization program. Farm workers who have been working here 

in the United States would have to come forward and report themselves as having been undocumented and prove that they have 

been working in American agriculture during the last 2 years, 150 

days, in agriculture. 

Then they would get a temporary status. In a temporary status, 

they would have to continue to work in American agriculture for 

3 to 5 years, a certain number of days per year depending. And 

they would have to pay fees. They would have to pass security 

checks and meet other obstacles. It is a very arduous process of 

79

earning legal immigration status. We don’t see how that should be 

called amnesty. 

Mr. SALAZAR. I appreciate your comments, Mr. Goldstein. Mr. 

Brown, I am sure you are aware of the almost bankruptcy of Swift 

& Co. meatpacking plant in Greeley, Colorado in Mrs. Musgrave’s 

district when the raid occurred last year. 

That plant was sold to an Argentinean family because of the 

heavy fines imposed in Colorado. I understand what is going on, 

and the labor force is not there. You talked about a biometric ID 

system, which I tend to agree with you on. I believe that that is 

the only way that you can ever enforce any kind of immigration 

law, but if that happens, it has to be some kind of a National ID 

System. Would you be willing to carry one of these biometric IDs 

with you as well? Because otherwise, you wouldn’t be able to apply 

for a job? 

Mr. BROWN. If the question is would I personally be willing to 

carry one, yes, I would. 

Mr. SALAZAR. And do you agree with me that that is the only 

way to really be able to enforce immigration law, if you have some 

kind of tamper-proof ID system in place? Anyone can comment on 

that. 

Mr. BROWN. In my view, the only way to deal with true identity 

theft, whether that has to do with immigration law or any of our 

domestic laws, the only way to deal with that is to have a biometric 

and to have the Federal agencies, the various Federal agencies be 

able to communicate with each other. 

For instance, we used a basic pilot program. We submit the name 

of the employee, the new employee, and their Social Security to 

DHS. The Department of Homeland Security will then get back to 

Swift or any other number of employers that use the program, and 

they will verify yes, John Smith’s Social Security is X. What it does 

not verify is if there is a number of other people using the name 

John Smith and the same Social Security Number. That problem 

does not present itself until the end of the year when employers 

are paying Social Security taxes on employees, and you file your 

W–2 forms. Then you find out that there are a number of John 

Smiths using the same number. 

That is why if we had up-front biometric as well as the Department of Homeland Security and the Social Security Administration 

sharing information, we could reduce that problem and, in essence, 

develop a border within a border and allow employers to comply 

with the laws and to prevent raids such as we had at Swift. 

Mr. SALAZAR. Thank you. Thank you, Mr. Chairman. 

The CHAIRMAN. I thank the gentleman. The gentleman from 

Iowa, Mr. King. 

Mr. KING. Thank you, Mr. Chairman. I appreciate you holding 

this hearing and the gathering of testimony that we have received 

here. I hear the discussion about the definition of ‘‘amnesty,’’ and 

we have discussed that considerably over in the Judiciary Committee and in the Immigration Subcommittee. And the definition 

that I have consistently used, and one that many of my colleagues 

consistently use, is this: that to grant amnesty is to pardon immigration lawbreakers and reward them with the objective of their 

crime. 

80

I think that definition upholds against the rational criticism that 

might come, unless one wanted to advocate for amnesty, and in 

that case one might try to change that definition. But we have 

laws, and if we enforce those laws, that is my stand. 

If you give someone legal status after having broken the law, 

then you have granted them an amnesty for the law that they have 

broken. So, I wanted to make that point. 

And then I think maybe the subject matter that needs to be explored in significant depth here is that each of us can advocate for 

more access to higher quality and cheaper labor. I have been an 

employer for 28 years, met payroll over 1,400 and some consecutive 

weeks. So, I have always wanted more and better employees that 

would actually work for an even cheaper rate. But certainly I don’t 

want to pay more than what they are worth in the marketplace. 

So it is a natural thing in business to be advocating for that, and 

I understand that. We have a broader issue here, and that is that 

this is a sovereign nation, and the borders of this nation define the 

nation itself. And, of course, we must defend those borders. But 

from a macroeconomic perspective, the issues boil down to this for 

me. We have a workforce, according the U.S. Department of Labor, 

of about 142 million workers. And out of that 142 million workers, 

then we have an illegal workforce in America—now, some of these 

statistics come from different organizations, none from my calculations beyond the math itself—that 4.7 percent of our workforce is 

the illegal labor that we have. That 4.7 represents 6.9 million illegal workers in America. 

Now, if we have 12 million illegals—and I think it is actually 20 

million or more, but I am working with the 12—7 of the 12 million 

from round figures are those that are working. At any rate, you get 

a 58 percent employment rate out of those numbers that come into 

the United States illegally: 6.9 million workers out of a workforce 

of 142 million, representing 4.7 percent of the workforce, but being 

low skilled, only produce 2.2 percent of the actual GDP. 

If they are doing 2.2 percent of the work, production, and you 

came into the factory in the morning and you found out that 2.2 

percent of your production workforce wasn’t going to clock in that 

morning, that amounts to, if you are going to do all the work in 

America in an 8 hour day 7 days every week, that would be 11 

minutes out of each 8 hour day. 

So, we have 69 million Americans of working age who are not in 

the workforce. All we would have to do is hire one out of every ten 

of those to replace those that are illegally working in the United 

States, and we will have solved this labor shortage problem. 

Now, I understand you have to set up recruitment lines and do 

different training and people want to do different things, and there 

are industries that are far more dependent and far more critical 

than others. But if we never had this universe of employees to go 

to across our borders of that labor, we would have found other solutions. We have evolved into a dependency. 

So, I would ask Dr. Holt to comment on those macro numbers 

and tell me if it is in your estimation that it would be wise for us 

to want to improve the average productivity of each American who 

is lawfully present in the United States as a priority. I would leave 

that question to you, Dr. Holt. 

81

Dr. HOLT. Well, if your question is improving productivity of 

American workers, I think you need to look at the statistics, the 

record of how the productivity of American workers has increased. 

We have been increasing the productivity of American workers. We 

have been increasing the productivity both in agriculture and nonagriculture. 

Mr. KING. Excuse me. We agree on that then, and so, yes, we 

agree on that point. But what are your comments with regard to 

that macro equation that I have given about hiring one in ten nonworking Americans to replace those who are unlawfully present in 

the United State or not legal to work. 

Dr. HOLT. Well, you ran through those statistics rather quickly, 

and that was a complicated analysis. And I am not sure I agree 

with all of those statistics. I am not prepared to debate them at the 

moment until I would analyze them. With respect to the agricultural situation, which is what we are here discussing today, the 

question is do we have 800,000 to a million persons in the United 

States who are not currently working who are willing to become 

migrant workers, to leave their places of residence, to go to the 

farms of the United States, and to perform manual agricultural 

labor: I think the answer to that question is clearly no, and in 

the——

Mr. KING. I think, Dr. Holt, the question of 800,000 is still a 

question. And the question of recruitment from other professions is 

a subject matter that should be before this Committee as well. But 

I recognize that I have run out of time, and I appreciate your response and your testimony. I yield back, Mr. Chairman. 

The CHAIRMAN. Thank you very much. I think we are going to 

go now to Mr. Pomeroy. 

Mr. POMEROY. Thank you, Mr. Chairman. I want to thank the 

panel. I have found this to be an extremely informative hearing, 

even though many of the issues are not of immediate and significant impact in my district as they are others, given the nature of 

agriculture up in the Great Plains. But obviously it is a topic of urgent national importance. 

Dr. Holt, I was quite astounded by some of the statistics you 

quote in your testimony. What percentage of farm labor in the U.S. 

do you believe is here on an undocumented basis? 

Dr. HOLT. Well, Congressman, interestingly enough, agriculture 

is the one sector of our economy in which the U.S. Government actually produces official statistics on illegal alien employment. The 

Labor Department conducts something called the National Agricultural Worker Survey on a biannual basis where they go out, and 

our own government asks a large sample of seasonal agricultural 

workers, among other things, whether they are legally entitled to 

work in the United States. The most recently published survey, 53 

percent of the respondents to that survey said they were not legally 

entitled to work in the United States. 

Out of the newcomers in any given year—and agriculture is seasonal work—it is work in which workers move up and out into better jobs. So 1⁄6 of the agricultural workforce each year are newcomers working their first year in agricultural work in the United 

States. In the most recent survey, 99 percent of those newcomers 

responded that they were not legally entitled to work in the United 

82

States. These figures are not speculative. These are official figures 

produced by the U.S. Department of Labor. 

Mr. POMEROY. Your testimony notes that often the amount of migrant labor involved in farming, those from other countries, that 

would go through the H–2A visa process, would represent 2 percent 

of the labor actually required to produce today’s product. 

Dr. HOLT. We have approximately 3.1 million job opportunities 

in agriculture for hired agricultural workers each year. Last year, 

which was the peak year for H–2A employment, 59,000 of those 

jobs opportunities were H–2A certified. That is 1.9 percent of all of 

the agricultural job opportunities in the U.S. were H–2A certified. 

Mr. POMEROY. 1.9 percent. So the thing that we have that deals 

with farm labor, other than a citizenship route, is clearly not even 

making a token contribution to the overall workforce need. 

Now, you note in your testimony the imminent impact of the immigration enforcement authorities, Social Security match issue. 

Would you care to expand on that? 

Dr. HOLT. Well, what the Social Security mismatch regulation 

will require is for employers who receive mismatch notices to confront the employees in question and ask them ‘‘to correct the data.’’ 

Well, of course, with very few exceptions, the problem is not incorrect data. It is the fact that the individual is not legally entitled 

to work in the United States. They don’t have a Social Security 

Number. The number is either fraudulent, or it has been appropriated from someone else. And so if the individual is unable to correct that information within 90 days, the employer is required to 

terminate them. 

Mr. POMEROY. Now, the Administration is announcing this significant crackdown, which will have a potentially dramatic impact 

on the identification of farm workers, working without documentation, has said, ‘‘Well, they are going to run this program that presently deals with 1.9 percent of folks coming in from outside the 

country in farm labor.’’ Do you believe there is any way they can 

ramp up the H–2A process sufficiently to deal with the number of 

workers that will potentially be identified and sent home under the 

enforcement crackdown? 

Dr. HOLT. Well, bear in mind that the mismatch regulations 

aren’t necessarily an enforcement crackdown. I mean the irony is 

the employer will have to terminate workers who are unable to correct their information, but nobody is going to go out and pick these 

workers up and do anything with them. 

What it is going to do is to churn the agricultural workforce. The 

worker that I have to terminate is going to go down the road and 

apply to work for Bob Stallman, and it is going to have a document 

that appears on its face to be genuine. So Bob is going to have to 

hire him. The worker that Bob terminates is going to come down 

the road and apply to work for me. And because he is going to have 

a document that appears on its face to be genuine, I am going to 

have to hire him. 

And then next year, there will be another round of mismatch letters, and Bob will get the names I sent down the road to him. And 

I will get the names that he sent down the road to me, and we will 

churn it all over again. And we will send them down to Lee Wicker 

and so forth and so on. 

83

Mr. POMEROY. Right. 

Dr. HOLT. We will just pass them up and down the table. Nobody 

is actually going to go and pick these workers up and remove them. 

So the mismatch regulation in and of itself doesn’t solve anything. 

Mr. POMEROY. It compounds the farce that we all have. 

Dr. HOLT. Exactly. 

Mr. POMEROY. I know my time is up, but I would like to ask one 

more question. Mr. Goldstein, in the back and forth with the Ranking Member, it appeared to me you had thoughts to further express, but I would like you to speak specifically to this. A concern 

that many of us have about guest workers is that essentially these 

people never have status that is going to get them out from under 

really a potentially exploitive labor circumstance. Would you address that and talk about how AgJOBS changes that? 

Mr. GOLDSTEIN. Right, some of the proposals are just to transform the entire agricultural workforce into a guest worker system 

that is where the workers only hold a nonimmigrant status, and 

they can only work for the one employer that got them the visa. 

The minimum standards that are required by the H–2A Program, 

as long as they are offered, have to be accepted. Under H–2A, the 

employer has to offer these minimums, but if the U.S. worker or 

foreign worker says I will work for 10¢ more an hour, legally the 

employer can say no, I am not going to do that and can go get another guest worker because that is just the way that the system 

works. 

So, under these programs, the workers really don’t have any bargaining power. They don’t have a path to immigration status or 

citizenship. They will never have the right to vote, and it creates 

a real imbalance in the political representation because the growers, their employers reside in those local areas, and they vote. 

Their workers have interests too, but they don’t vote. 

AgJOBS would allow currently undocumented farm workers in 

the United States to, over a multiyear arduous process, to earn 

legal immigration status, and at the same time, provide employers 

with a stable workforce that they could then choose to—in our private marketplace—they are supposed to compete for the workers by 

improving wages and working conditions. 

So that is the first part of AgJOBS. The second part would reform the H–2A Program. It would make it easier to use. It would 

reduce red tape. It would lower the wage rates by over a dollar an 

hour and freeze them for 3 years while two studies are done for 

Congress by the GAO and a special commission to tell Congress 

about H–2A wage rates and let Congress then decide how to approach the wage rates. There are a number of other reforms to the 

H–2A Program. That would really be the future program for the 

United States——

Mr. POMEROY. Thank you. 

Mr. GOLDSTEIN.—to bring in new agricultural workers. 

The CHAIRMAN. The chair recognizes Mr. Fortenberry, 5 minutes. 

Mr. FORTENBERRY. Thank you, Mr. Chairman. Thank you, panelists, for the engaging discussion particularly some of the insights 

of the inherent problems from Mr. Wicker and Mr. Goldstein both 

have pointed out in the H–2A Program. 

84

At the outset, I would recommend, as a part of having a responsible policy discussion about the appropriate needs of the agricultural labor supply, that we take off the table a blanket accommodation of illegal behavior or the hint of it as a policy option. We must 

uphold the rule of law. We must promote responsible citizenship 

and orderly immigration. 

Now, to that end, we have heard a lot of the complexities today, 

and I do appreciate your insights. My colleague from North Dakota 

anticipated some of my questions regarding the statistics. But I 

would like to further unpack some of those statistics. Dr. Holt, you 

pointed out that approximately 53 percent of seasonal workers 

have illegal status here. But overall agricultural workers, what is 

the division between citizens and non-citizen? Then I want to ask 

the question, and perhaps it is better asked sector by sector, as to 

whether or not real wages have fallen or risen. 

Dr. HOLT. Well, the first question first. First of all, let me mention that the 53 percent illegal is the number of people who were 

responding in the survey that they were illegal. I don’t think anybody believes that the number is really that low. These are simply 

the people that were willing to admit it. 

Mr. FORTENBERRY. What is the extrapolated figure through probability? 

Dr. HOLT. When workplace audits are conducted on the ground 

and the authenticity of documents are examined, the typical experience is that more like 75 percent or so. 

Mr. FORTENBERRY. Okay. 

Dr. HOLT. I have seen figures in some instances in places that 

you would not imagine are hotbeds of illegal immigration like the 

upper Midwest as high as 90 percent. So 3⁄4 is probably—78 percent of the seasonal agricultural workforce are foreign born. Now, 

some of those individuals may have become citizens since—may 

have legally immigrated to the United States and become citizens 

and are engaged in farm work. I suspect the proportion of that 78 

percent that that would describe is probably quite low. 

So 78 percent of our agricultural workforce in this country came 

here from outside the United States originally. 

Mr. FORTENBERRY. Seasonal agricultural workforce. 

Dr. HOLT. This is the seasonal agricultural workforce. That’s correct. Your second question, and I am sorry now, I have forgotten 

what it was. 

Mr. FORTENBERRY. Well, first of all, backing up. In terms of overall agricultural labor, what is the percent of American citizens 

versus non-citizens in the total workforce? 

Dr. HOLT. Well, the 23 percent that were born here obviously are 

citizens. 

Mr. FORTENBERRY. Getting away from the seasonal parameters. 

Dr. HOLT. Well, more than 80 percent of the agricultural workforce is seasonal. We know that a substantial number of the year 

round workers in agriculture are also illegal. That is one of the 

concerns about simply saying that reforming the H–2A Program 

solves the problem. It doesn’t solve the problem because a small 

but key component of our agricultural workforce are workers that 

are no longer temporary or seasonal, are not eligible for the H–2A 

Program, no matter how streamlined it becomes. 

85

H–2A only permits, under current law, the admission of workers 

into temporary or seasonal occupations. And one of the reforms 

that is needed is to broaden that into, for example, the livestock 

sector. But the——

Mr. FORTENBERRY. Real wages. We have to get that before we 

run out of time. 

Dr. HOLT. Real wages, right. Real wages in agriculture have increased. They have increased—I can’t right off the top of my head 

cite the statistics. Nominal wages, money wages, the rate of increase in the hourly rate for field and livestock workers compared 

to non-supervisory, non-agricultural workers—over the past 20 

years, agricultural wages have actually increased at a more rapid 

rate. My recollection is roughly 39 percent more rapidly. 

Now, the actual wage in agriculture is still below the non-agriculture wage because the skill range of workers in agriculture is 

much narrower than the skill range of nonagricultural workers. 

Mr. FORTENBERRY. Okay, but with any statistical discussion, you 

have to continue to unpack to understand clearly the parameters, 

but it would be good to see what that trend is versus non-skilled 

agricultural workers. 

Dr. HOLT. And I would be happy to try to provide——

Mr. FORTENBERRY. The point is to try to get to what was intimated earlier in some of the earlier testimony about how the impact of additional supply of agricultural labor, whether it is legal 

or in our regulated programs, is impacting wage growth. Because 

we do not, cannot advocate policies that would simply increase the 

supply of labor in order to bring down wages and pushing, of 

course, added social cost onto the rest of society. 

Dr. HOLT. Well, I understand that, Congressman, but it is hard 

to argue that the presence of foreign workers in agriculture is having that impact, given the fact that the agricultural workforce is 

overwhelmingly foreign and illegal, and yet the nominal wage rate 

is rising, and the real wage rate is rising more rapidly in agriculture than it is in non-agriculture, which is less impacted overall 

by the employment of illegal aliens. 

Mr. FORTENBERRY. Indulge me for 15 more seconds. Let us find 

out what the differential is that you are not able to recall off the 

top of your head. 

Dr. HOLT. I will. 

Mr. FORTENBERRY. I think that would be helpful statistic as well. 

Dr. HOLT. I will do that. My recollection, as I say, is that over 

the 20 year period that I recently looked at these statistics for, the 

relative rate of increase was about 39 percent higher in agriculture 

than in non-agriculture. I will provide you with those. 

Mr. FORTENBERRY. Thank you. 

Mr. MAHONEY [presiding.] Thank you very much. The chair recognizes Mr. Costa. 

Mr. COSTA. Thank you very much, Mr. Chairman. To follow up, 

Mr. Holt, and I thought all the testimony provides a basis for more 

information for the Committee and the Congress to try to address 

this issue. I have told some of my colleagues on the floor when previous solutions were being offered that it reminds me of denial, and 

denial is not a river in Egypt. Denial is ignoring the numbers, Dr. 

Holt, that you have explained in great detail. 

86

When 1.5 percent of the total workforce is able to take advantage 

of H–2A nationwide—and in California, I believe, the number is 

0.4—clearly this program doesn’t address the needs of the totality 

of the issue. 

When you look at the total workforce here that is here illegally 

today, it is also, I think it is important to note that less than 20 

percent is engaged in agriculture. So your statistics stipulating 

that, in fact, we have more jobs today in the economy and we are 

creating more jobs than we have workers, I think we need to take 

note of. 

Whether or not we support some version of guest worker program or not, not to address it is to be in denial in some legally 

fashionable way that protects employers and protects employees 

and is fair. So why do you believe—and I am going to make a point 

here—Dr. Holt, that the H–2A Program just doesn’t work? 

Dr. HOLT. The question is why do I believe it doesn’t work? 

Mr. COSTA. Right. 

Dr. HOLT. Well, clearly it does work for a very small percentage 

of——

Mr. COSTA. One and a half percent. 

Dr. HOLT.—employers. 

Mr. COSTA. I would stipulate that that is not solving a problem. 

Dr. HOLT. The detailed answer to that would be complicated, but 

in general, the terms and conditions that it imposes on many job 

opportunities simply are not competitive. So employers can’t afford 

to use it. Number two, the administrative procedures of the program are too complicated to permit employers to work with. And 

number three, at the present time, the litigation and enforcement 

risks entailed with the program are so high that many employers——

Mr. COSTA. So notwithstanding the good idea, it just doesn’t 

work. 

Dr. HOLT. It is a mechanism that could work. 

Mr. COSTA. Well——

Dr. HOLT. It doesn’t work. 

Mr. COSTA. But it would need significant changes to work. 

Dr. HOLT. It would need significant changes——

Mr. COSTA. All right. 

Dr. HOLT.—including statutory changes. 

Mr. COSTA. Right, absolutely. I don’t want to belabor the issue 

of comprehensive reform, which I support, that has three legs of 

the stool to stand on. Which is first, border security, meaning increased border security, which we are doing some of now today. 

But the second part is the status of those that are presently here 

illegally today. And the third element of that leg of the stool is a 

legitimate, fair, guest worker program that I think is replicated in 

the AgJOBS proposal. 

For those who argue that what we really need to do is to correct 

the deficiencies in H–2A, I would stipulate that is what the 

AgJOBS Program is. I think people need to understand. First, it 

is a pilot project. The first step is that it requires 150 days within 

the previous 2 years before you could receive a blue card. 

87

Second step would require that the 150 days per year for 3 years 

be substantiated before you would be eligible to apply after 5 years 

for a green card. 

Third, it would require an employer to verify that all of these 

statements, pay stubs, W–2 forms are legitimized to prove the previous work. 

Fourth, it would be capped at 11⁄2 million workers. I mean that 

is a pilot project. That is an attempt to address the issue within 

agriculture. 

It would also, because of the seasonal nature of agriculture, allow 

people after 100 to 150 workdays in each year to then work another type of work that is non-seasonable for that period of time. 

It would also allow for those workers to travel within the United 

States and to go back to their countries. It would require a fine. 

It wouldn’t be for free. It would require a $500 fine for those that 

apply for it, and that you would have to pay any previous taxes 

that were owed. And then it would require, something very important, a biometric type identification that Homeland Security would 

develop because part of the issue is security, as we all agree upon. 

And this would become very real. 

This is an attempt to take the H–2A Program, in my view, and 

make real modifications to it to make it work. I mean we are calling it AgJOBS, but you could call it a modification of the H–2A 

Program if you contain these elements in it. Do you think those 

would go along the way, Dr. Holt, of working, Mr. Stallman? Both 

of you, please. 

Dr. HOLT. Well, yes, I do. There are two critical components to 

AgJOBS, and those two critical components both have to be addressed for legislation to be effective. One is to reform the mechanics of the requirements of the H–2A Program, and probably 65 

pages of the 104 pages of AgJOBS is focused on those kind of reforms. 

And the other is we have to address the resident illegal agricultural workforce that is here that we frankly cannot do without. 

That is the part of AgJOBS you have just described. The adjustment of status does that in a humane way that does require workers to pay a price if you will. What I like to compare it to is sort 

of work release. That is a well-honored tradition within our law enforcement system. Workers work off, if you will, their having been 

here, having come into this country in illegal status. And that is 

why you don’t think you could call this an amnesty. 

Mr. COSTA. You know the numbers with the employment development departments in California and those that have sought agricultural work? 

Dr. HOLT. Well, there was a—before Senator Feinstein really became hands-on active in AgJOBS, she really put the test to California farmers. She said I want you to go out. I want you to work 

with EDD and really mount a serious effort to try to recruit domestic workers. EDD offices up and down the valley participated in 

this. There was all kinds of recruitment efforts and so forth made. 

At the end of the day, that whole effort produced three workers. 

And that is what caused Senator Feinstein to say we need to do 

something statutorily about this program. 

88

Mr. STALLMAN. Very briefly, I suppose, AgJOBS does help with 

the short-term problem. What AgJOBS does not do is provide that 

longer-term guest worker program. 

Mr. COSTA. Well, that is why I am supportive of the comprehensive effort clearly. 

Mr. STALLMAN. But concerning the Senate bill, we had some real 

problems with the H–2A section in there because it actually—well, 

the wage issue was one——

Mr. COSTA. No, I understand. 

Mr. STALLMAN. And, until we have an adequate guest worker 

program, the temporary solution is fine, but we are going to be 

right back dealing with the same issue. 

Mr. COSTA. My time has expired, Mr. Chairman. I have some 

other questions I will submit, but if you bear with me for a moment, I would like to recognize, and I will submit a written statement in a memorial and Congressional record reflecting, for those 

of us from California, Mr. Roy Gabriel who, for 35 years, worked 

for the California Farm Bureau on labor relations issues. He would 

have probably been here in the audience today. Came here 2 days 

ago and suddenly passed away, but he was a passionate advocate 

on behalf of not just California agriculture but solving these labor 

issues and worked closely with not just farmers but farm workers. 

And we will miss Roy Gabriel, and we will submit an appropriate 

statement. 

Mr. MAHONEY. Thank you, Mr. Costa. The chair recognizes the 

gentlewoman from Kansas. 

Mrs. BOYDA. Thank you, Mr. Chairman. Thank you for being 

here. I represent the eastern part of Kansas, which is different 

than the western part of Kansas. I represent 26 counties that go 

from Nebraska down to Oklahoma. Clearly, Mr. Moran, I get to 

serve on the Committee with him, and the issues in western Kansas are just flat out a little different than the ones in eastern Kansas. 

What I would like to do is just to give you—you all have been 

in my office and talking about some things. The one thing that 

keeps us from moving forward, and you spoke about it, Mike, and 

that was how do we decide who has been here legally. We are talking about it, and I have heard it talked about. How do we enforce 

any law that we put together? 

So in the Second District, I don’t mind saying the words comprehensive immigration reform. I like throwing fuel on the fire. I 

got into an elevator last week with the postman and said what is 

on people’s minds. Want to guess what it was? Illegal immigration. 

It is almost to the point where on a given day, it is becoming 

quite uncomfortable. It has gone from a fairly rational discussion 

into something that on a given day can be not very—I don’t know 

what words I want to have in the record, so I just won’t go any further than that. But it is getting worse, not better. 

And what their main message is that I would like to share again 

with you is we are not interested in putting all kinds of penalties 

on people, whether they are the employers or the people that are 

working here, until you can show me how you can enforce this. 

Just show me how you can enforce it. Show me how you intend to 

89

enforce it. Give me some idea that you might enforce it. That is 

where the sticking point is. 

So I would just offer with you to see if there is any way that we 

can help come together. You all have, especially the Farm Bureau, 

within the State of Kansas and in my district, you have a great 

deal of trust, a great deal of respect. You have a network all put 

together of people who will listen. So we have to come back down 

off of this ledge. 

But what they are going to be listening for is just show me that 

you have some intention of enforcing it. Show me. Don’t tell me. 

I have had a good conversation with somebody when we were talking about comprehensive immigration reform. So I came back to 

just the issues that you were talking about and how do we enforce 

it. And they said, ‘‘Well, that is the problem. The devil is in the 

details.’’ Until we have those details worked out, comprehensive 

immigration reform—the CBO judge said that it wasn’t going to do 

anything to substantially change illegal immigration, less than 20 

percent of it because the people in Kansas’ Second District didn’t 

need any CBO report to tell them that. 

People in my district are people who are good people. They are 

also part of why things aren’t moving forward and part of why we 

aren’t stuck because they have ground in and said, ‘‘Until you can 

let me have some sense of faith that you are going to enforce this, 

we are going to dig our heels in even stronger.’’

So I don’t know whether you have any comments on that, but my 

office would be more than willing to work with you in helping to 

get out a message and shape a message and shape those kinds of 

real solutions. We all talk about some kind of biometrics, knowing 

that it is that issue that is holding a bunch of things up. 

Well, we have to get it off of the dime and move it forward and 

have what could be a very complicated and maybe even uncomfortable conversation. But it has to be moved forward, and I would just 

offer our support from the office to do anything we can to help you 

all move that forward. And I will take any comments on that. Yes, 

Dr. Holt. 

Dr. HOLT. Congresswoman, may I suggest that this is perhaps 

not as complicated as we think it is. We clearly can’t have effective 

enforcement without a labor supply, a guest worker program along 

with it. We clearly don’t want to have a guest worker program 

without effective enforcement, and the thing we seem to be stuck 

on is the advocates of enforcement before guest worker and maybe 

the advocates of guest worker before enforcement. I think that is 

where the comprehensive is so critical. 

Mrs. BOYDA. Yes. 

Dr. HOLT. Is that both of these comments have to be done together, and when we do that, then, as the gentleman at the end 

of the table testified earlier, biometrics has to be part of it. We 

need to know that when somebody presents a document, that that 

document can be verified as being authentic and that it belongs to 

the person presenting it. 

The technology, DHS has the technology for doing that. It exists. 

It is a matter of the will to implement it. 

Mrs. BOYDA. I couldn’t agree with you more. Yes? 

90

Mr. GOLDSTEIN. And just from a non-technical point of view, I 

mean we farm worker advocates, the farm worker organizations 

have the goal of ensuring that the farm labor force is legally here. 

Mrs. BOYDA. Yes, it is good for everybody. 

Mr. GOLDSTEIN. Exactly, and we believe that AgJOBS would accomplish that goal. We are convinced that the percentage of undocumented workers would go down to close to zero initially and 

that would stay very low into the future. 

By the same token, however, we don’t want to just transform the 

farm workers into a system of guest workers because frankly if you 

start weighing who is better off, a guest worker with kind of no 

labor protections versus an undocumented worker, that is not a debate we want to be involved in because under neither situation is 

a farm worker going to be treated fairly. And that is our goal here. 

Mrs. BOYDA. I would just say again in the district that I represent, no one believes that there is a decision on how to implement all of those. I know I represent somebody who is going to 

stand and dig in the heels with the people of the Second District 

of Kansas. So showing them what a system looks like would be a 

good thing. Thank you so much. 

Mr. MAHONEY. Thank you very much. That concludes our first 

panel. I want to thank the panel very much for being here. It was 

very informative, and your testimony is very important in establishing a baseline for what the situation is in agriculture. So thank 

you very much. If we could bring the second panel on, we have 

votes coming up here very quickly, and I would like to get through 

the initial opening statements before the votes happen. Thank you 

very much. Will the panel take their seats please so we can get 

started? Any private conversations, please take them outside the 

Committee room. 

I would like to welcome our second panel. The first panel we had 

sort of the industry experts talking a little bit about the impact of 

the labor situation, and now we are going to be honored to listen 

to the gentlemen who actually has the responsibility for actually 

farming and having to deal with the problem. And I would like to 

turn over to Mr. Cuellar the opportunity to introduce one of the 

panel members. 

Mr. CUELLAR. Thank you very much, Mr. Chairman. I also have 

a statement that I will go ahead and introduce for the record. But 

it is my pleasure to welcome somebody from Texas. A special welcome to J Allen Carnes, a south Texas vegetable producer who is 

here to testify. J Allen is Vice President of Carnes Farms Inc., 

President of the Texas Vegetable Association, Director of the Texas 

Produce Association, Director of the South Texas Onion Committee. 

He has a lot of experience, being from the border, and I was listening to the conversation on immigration. 

Being from right along the border, it is a topic that we can go 

on and on. But certainly it is an issue that we need to look at, and 

certainly need to look at H–2A and how we can make that more 

efficient and more effective. Thank you, Mr. Chairman. 

Mr. MAHONEY. Thank you, Mr. Cuellar. I would like to introduce 

somebody from my home district, Mr. Mason Smoak, born and 

raised in Lake Placid, Florida, a little piece of heaven right in cenVerDate 0ct 09 2002 10:21 May 05, 2009 Jkt 041481 PO 00000 Frm 00094 Fmt 6633 Sfmt 6601 I:\DOCS\110-30\48999.TXT SOLEM PsN: REBEKA
91

tral Florida. And he is a third generation citrus grower from Highlands and Hardy County. 

Mason is active in managing over 3,000 acres, and that includes 

citrus care taking and harvesting and hauling operations. Mason 

and his family also manage 13,500 acres where they run 2,300 

head of cows—that is about 2,290 more than me—in a commercial 

cow-calf operation. Mason is an active member of Florida Citrus 

Mutual, Florida Farm Bureau, Federal and Highlands County Citrus Growers Association. I am glad to have you here, Mason. 

I would like to also introduce Mr. Harry B. Yates, Board Member 

of the National Christmas Tree Association and Christmas Tree 

Producer, Boon County, Boon, North Carolina. I would like to also 

introduce Mr. Randy Mouw from the Misty Morning Dairy from 

Ontario, California. Mr. Keith Atkinson, tobacco producer from 

Java, Virginia. 

And I have another gentleman that is not quite in my district, 

but we like him just the same. It is Mr. Rick Roth who is a third 

generation farmer from Bell Glade, Florida and is President and 

Principal Owner of Roth Farms, which is the most diversified farming operation in the Everglades agricultural area. The Roth family 

owns over 4,000 acres and leases another 1,000 acres. They grow 

lettuce and leafy vegetables, radishes, sugar cane, sod, sweet corn, 

green beans, field grown palm trees, and rice, just about everything 

that grows in Florida. Rick currently serves on the Board of Directors of the Florida Farm Bureau and Florida Fruit and Vegetable 

Association, Sugar Cane Growers Cooperative of Florida. It is nice 

to have you here, Rick. With that, let us start——

Ms. FOXX. Mr. Chairman. 

Mr. MAHONEY. I am sorry. I didn’t see you there. 

Ms. FOXX. That is okay. Just one quick correction for the record. 

Harry Yates is from the Fifth District of North Carolina, my district. 

Mr. MAHONEY. Did you want to introduce him? 

Ms. FOXX. Well, if I could just say that it is Watonga County and 

the town of Boon. Harry has been a leader in agriculture, and particularly in the growing of Christmas trees, and a good friend for 

a long time. He is very well versed in the issues that he is going 

to be presenting. He is a former high school teacher, and I am just 

thrilled that he has been able to come up today to be with us. 

Thank you. 

Mr. MAHONEY. Yeah, I am sorry I didn’t see you down there. My 

contacts don’t go that far up here. I am usually a lot closer to the 

action, being the most junior Member of the Committee. With that, 

let us start with the testimony if Mr. Carnes could go ahead and 

start. 

STATEMENT OF J ALLEN CARNES, PRESIDENT, WINTER

GARDEN PRODUCE; CHAIRMAN, TEXAS VEGETABLE

ASSOCIATION; DIRECTOR, SOUTH TEXAS ONION

COMMITTEE, TEXAS PRODUCE ASSOCIATION; VICE

PRESIDENT, CARNES FARMS, INC., UVALDE, TX 

Mr. CARNES. Yes, thank you Members of the Committee, and 

thank you for the opportunity to testify before you and express my 

92

perspectives on the labor shortage as it relates to my business and 

as it relates to Texas vegetable industry as a whole. 

Sitting here and listening to some of the debate going back and 

forth, I hope that this Committee will truly take the perspectives 

of this panel because we are the on-the-ground people. We have experienced this problem firsthand, and whatever the political realities of fixing this problem, we have a problem. And we need to fix 

it fast, or we are going to sufficiently damage the oldest institution 

in the United States of agriculture. And agriculture in Texas and 

the U.S. as we know it will no longer exist. 

Once again, my name is J Allen Carnes. I am the President of 

Winter Garden Produce, the Vice President of our family farming 

operation, and the current Chair and President of the Texas Vegetable Association. We currently farm over 3,000 acres in the south 

Texas area and ship over 2,000 acres of fresh fruits and vegetables, 

amounting to 1.2 million packages. 

I am going to go straight into my experiences with the problem, 

and then I will expound on our workforce and how it relates to 

Texas and where the shortages are coming from. 

In 2004 and 2005, we began to see a major problem. Crews became short, and those 2 years by themselves, we ended up getting 

the crops harvested. It took a lot of doing and a lot of jockeying 

back and forth amongst sheds, offering more money here, more 

money there, but at the end of the day, it got harvested. 

Now, we came to 2006, and we saw a major labor shortage. We 

saw, to my knowledge, the first direct, out-of-the-pocket expense to 

Winter Garden Produce based on that year. We had direct losses 

of $75,000 based on solely shelf life and arrival value of our 

produce. We also had to abandon 35 acres of cabbage that we left 

unpicked, unharvested almost completely because we didn’t have 

the crews to do it. And the sales value on that field alone was 

$150,000. 

Now, sitting and seeing my family and my father particular faced 

with the daily problem of not having a crew to harvest our crops 

and seeing our crops affected by this. If you know many farmers, 

sometimes watching a crop for 4 or 5 months grow and come to fruition, they look on that crop and have as much adoration for that 

crop as sometimes their firstborn child. So it was a real heartbreaking experience to see my family deal with the loss of a crop 

that we couldn’t get harvested solely because of labor. 

We came to 2007, and every indication pointed towards a much 

larger problem than we had in 2006. According to a study at Texas 

A&M, the overall numbers in the spring onion harvesting crews 

alone were down 21 percent from the last year. So we expected to 

have a real storm. 

Beginning in some of the harvest in May of 2007, we were running already 4 and 5 days behind, and unfortunately then we hit 

a major weather event. And some of the shortages were unknown 

to us. We did lose a field of onions that, because we were running 

4 and 5 days behind, and then we hit so much rain and so much 

weather, that we were unable to harvest. And the sales value on 

that field alone was over $250,000. 

93

We have a problem with not only a local labor force—and that 

is kind of strange in itself that we are basically 50 miles from the 

border of Mexico, and we have a labor problem. 

Right now, the unemployment in Texas has fallen to 4.2 percent. 

Texas employers are adding—they have added so far this year 

230,000 jobs. The economy in Texas and especially along the border 

is growing at a substantial rate. In our county, we saw these numbers dip to 5.2 percent. These are some of the lowest numbers we 

have ever experienced. 

The workforce numbers in Uvalde County of 18 years and older 

that are authorized to work are at just over 10,000. The job opportunities in Uvalde County are approaching 12,000. So we have a 

huge imbalance, and being in agriculture and just the nature of agriculture, it is hard to compete against that. Being less attractive, 

it is very hard for an employer to compete against those numbers. 

So because of that, we have always relied somewhat on Mexico 

and Mexican labor that cross using legal channels, and I hopefully 

will have a later chance to expound on that. 

But to finish my testimony, I would like to give you some of the 

effects that this country and Congress has had over not solving the 

immigration and the workforce shortage problem that we have had 

since 1986. In the last 10 years, the onion acreage alone in Mexico—which we have experienced a lot of shortages on our onion 

harvest crews. The onion acreage in Mexico alone has risen 12,000 

acres. On cabbage, broccoli, spinach, and carrots, some of my top 

crops and some of the top crops of Texas, it has risen 28,000 acres. 

In roughly that same time period, the shipments of Texas products around the nation are down 77 million pounds. Our agriculture is going into Mexico, and the logjam that we are seeing on 

the Federal level on this issue is increasing how fast it is going into 

Mexico. The question is not whether our crops will be harvested by 

Mexican labor. The question is will they be harvested in the United 

States, or will they be harvested in Mexico? 

And we all know that because of some of the concerns, food safety, bioterrorism, and so forth that we are dealing with, that we 

need a national food supply. 

[The prepared statement of Mr. Carnes follows:]

PREPARED STATEMENT OF J ALLEN CARNES, PRESIDENT, WINTER GARDEN PRODUCE; 

CHAIRMAN, TEXAS VEGETABLE ASSOCIATION; DIRECTOR, SOUTH TEXAS ONION

COMMITTEE, TEXAS PRODUCE ASSOCIATION; VICE PRESIDENT, CARNES FARMS, INC., 

UVALDE, TX 

Chairman Peterson and Members of the Committee, thank you for the opportunity to testify before the House Agricultural Committee to share with you my perspectives on the labor shortage as it relates to my business and to the Texas vegetable and citrus industries as a whole. 

My name is J Allen Carnes. I am the President of Winter Garden Produce, Inc., 

Vice President of our family farming operation, Carnes Farms Inc., and the current 

Chair of the Texas Vegetable Association. My family has been in the agriculture and 

produce industry in Texas since 1950. We currently farm over 3000 acres around 

the Uvalde area in south Texas. On those farms, we have grown a wide range of 

agricultural products, one of the most important being vegetables. My family began 

marketing and shipping a select group of those in 1992. My father, Eddy Carnes, 

along with his father and brother formed Winter Garden Produce to ship product 

grown on our farms. In addition, we contracted with other farms in the area to harvest sell and ship their commodities. I began working for Winter Garden Produce 

full time in 1997 and became President of the company in 2006. At the present time, 

94

we harvest and ship over 2000 acres of fresh fruits and vegetables. This translates 

into approximately 1.2 million packages per year and over 10 million in annual 

gross sales. 

Due to the amount of product that we ship, we require a large workforce. This 

workforce is very unique because of the seasonal nature and the labor requirements 

of growing, harvesting, and packing our various products. Our labor needs often 

vary widely from one day to the next. Because of these factors, we see a large fluctuation in the number of people we employ on a daily bases. Winter Garden Produce 

begins harvest season in late October. During this time we employ 80–120 people 

per day. At the peak point of harvest season, May through June, we employ 400–

450 people per day. 

To satisfy the large and varying workforce we utilize several channels, most of 

which are through contract labor. We use between four and eight different labor 

contractors. These contractors provide us with harvest crews ranging from 25–100 

people. Our area uses a large amount of Mexican labor that commutes on a daily 

or weekly basis to fill a portion of these crews. To the best of our knowledge, these 

are legal immigrant workers. A variety of legal channels allow them to work and 

live in the U.S., but they choose to live in Mexico and commute into the area on 

a daily or weekly basis. Many ‘‘illegals’’ were given a legal right to work and reside 

under the 1986 IRCA legislation. Most workers who could prove they were living 

in the U.S. at that time were given identification cards. Workers who could prove 

they were working in agriculture and crossing the border on a regular basis were 

given an Agricultural ID card. During harvest season, on a given day, 15–50 people 

will cross out of Mexico with one of these cards to work for Winter Garden Produce. 

At peak harvest time, we use 50–100 people who have these documents and cross 

from Mexico each day. Also during peak harvest time, our company and other companies around us use migrant labor that comes up out of the Rio Grande Valley. 

Vans of family and friends follow the onion harvest. They start in the valley, then 

come and work in our area, and then move on to work in New Mexico and Colorado. 

These two groups of workers, along with a diminishing number of local workers, 

make up the vast majority of our harvesting crews. 

The natural U.S. based labor force in our area has been in short supply for as 

long as I can remember. In the last 2 years, we have seen our labor shortage become 

much more severe. The Texas unemployment numbers fell to 4.2 during the month 

of August. One year ago, the rate was 4.9%. So far this year, employers in Texas 

have added 229,000 jobs, up 2%. In Uvalde County, the labor force was estimated 

at 11,476 with 594 unemployed. This rate is at 5.2% down .6% from where it was 

last month. We have an imbalance between our local population and our workforce 

needs. The total population of people 18 years and older in Uvalde County is only 

10,094 and our civilian workforce is 11,476. We have a junior college and some of 

those over 18 are in school. We have more people in our workforce than are in the 

working age population. We have to attract people from outside our county to meet 

our workforce needs. Given this huge imbalance between jobs and workers, it is not 

surprising that ‘‘American workers’’ gravitate to the more attractive jobs, leaving 

the less attractive jobs (agriculture) to be filled by immigrant workers. Second, our 

industry in Texas is presently in its ‘‘off-season.’’ Our shipping season begins in October and lasts until July of the following year. Many of my workers are employed 

9 to 10 months out of the year and then collect unemployment the other two. These 

August 2007 unemployment numbers include a big portion of the local agricultural 

labor force. We see a local labor force that cannot fill all of our harvest labor force 

needs. We must have outside labor in order to survive. 

Because of our close proximity to Mexico, our area has always been able to meet 

our additional labor needs during the spring onion harvest by drawing workers out 

of Mexico. As a result of the IRCA legislation of 1986, an estimated 1.2 million farm 

workers were legalized, many of which had been working in the fields around 

Uvalde since the 1940’s and 1950’s. Some of the workforce that was legalized in 

1986 is still being utilized today. According to a Texas A&M University survey done 

in the spring of 2007, an average of 48% of all labor used to harvest spring onions 

is estimated to come from Mexico and is utilized by about 2⁄3 of the firms shipping 

onions. Approximately 39% of the workers coming from Mexico cross daily and 61% 

of those who cross weekly remain in the United States for the duration of the harvest. But as I note that IRCA provided some short term relief of worker shortages, 

I would be remiss if I did not tell you that IRCA did not come close to solving the 

long-term labor woes in the agricultural field. In the late 1980’s after IRCA, as few 

as 5% of agricultural workers were in the country illegally, and according to the National Agricultural Worker Survey, by 2005 that number had risen to 76%. By some 

counts there are as many as 1.5 million illegal workers in the agricultural industry. 

Looking at the numbers, IRCA legislation did nothing to provide a long term legal 

95

workforce in agriculture. Within the last few years, this supply of legal Mexican 

workers has been on steady decline, and companies such as ours struggle to secure 

a legal workforce to survive. The legal workforce out of Mexico that the agriculture 

industry in Texas employs is declining. These workers are becoming older and older 

and there is currently no viable legal way to replace them with younger workers. 

The workforce that still exists is having an increasingly difficult time crossing the 

border in a legal manner. Crossing time has tripled. Three to 4 years ago, it took 

half an hour to cross the border legally to work every day. Now it takes this legal 

workforce as much as 3 hours to cross the border. 

Another portion of our workforce is made up of migrant labor. Many migrant harvesting crews are not coming to the Winter Garden area like they have in the past. 

There is much speculation as to why this is happening, but the most likely reason 

is that they have something to hide and don’t want to risk being in our area. Increased border security, workplace raids, and the fear of raids are making the labor 

shortages in south Texas worse every day. We have had an explosion of Border Patrol agents in and around Uvalde. Apprehensions of illegal aliens are down 44% 

along our stretch of the border. According to local crew leaders, the amount of illegal 

aliens that are applying for jobs in our area has dropped to almost 0%. 

The biggest issue that Texas may face with ‘‘illegal’’ or ‘‘undocumented workers’’ 

is Social Security No-Match. Based on data Texas Employers for Immigration Reform has compiled, there are 8.1 million employees who would face No-Match letters 

and potential problems. Texas is figured to shoulder much of the problem with an 

estimate 780,840 employees being targeted by No-Match. Winter Garden Produce 

does everything in its power to have a legal workforce. For all labor contractors we 

use, we require that they submit all I–9’s and copies of all documentation to verify 

their I–9’s. Employers just cannot be sure this is enough. For the record, the vast 

majority of agricultural employers ARE playing by the current rules. We are interviewing workers, reviewing documents that appear legitimate on their face, filling 

out the Form I–9, withholding taxes and social security, and complying with the 

wage laws. Yet, the simple fact is that based on national estimates, at least 70% 

of the agricultural labor force is working under fraudulent documents. In fact, I 

would speculate that Texas has lived in denial about the extent of this problem for 

a long time, under what might best be described as ‘‘don’t ask, don’t tell.’’ So, the 

‘‘70% or more farm workers are illegal’’ statistic is likely accurate in Texas. 

Just as I have discussed that the IRCA legislation or ‘‘Amnesty’’ did little to solve 

the long-term needs of Agriculture, neither will a reformed H–2A program by itself 

solve the problem, for the opposite reason. At the present time H–2A fills fewer than 

60,000 jobs out of a total of over 3,030,000 jobs in agriculture. This translates into 

less than 2% of the total job opportunities. The numbers are even less in Texas. 

Currently only 1500 in Texas jobs are filled by H–2A. We have a total of 166,117 

agricultural job opportunities in Texas. This is less than 1%. There is no possible 

way in a short period of time that producers can go from less than 1% of the workforce to having a most of the it met by this or any other guest worker program. Besides this, there are many jobs in agriculture that cannot be filled by H–2A workers. 

Under H–2A, both the worker and the job must be temporary or seasonal (10 

months or less). This precludes us from filling key positions that are year round and 

cannot be filled by H–2A. Many producers, ourselves included, lack the housing 

needed to participate on H–2A. It will take time to work through the capital investment and approvals needed to acquire housing. Also, it is imperative that we as employers have an opportunity to retain key, experienced employees that have been 

employed for many years with fraudulent documents that employers had no way of 

knowing the status of these employees. 

The labor shortage problem in our area reached a climax in the spring of 2006 

and shows signs of becoming worse, as a result of the increased emphasis on workplace enforcement, border security, and the lack of comprehensive immigration reform. During the spring, Winter Garden Produce may employ as many as 400–450 

workers, 200 of whom harvest (clip onions) in the field. In May 2006, our harvesting 

crews were down to 80–100 laborers. Most, if not all, of the decrease in labor workforce includes daily crossers and migrant workers that come from the Rio Grande 

Valley. Because of this shortage, we were running 2 weeks behind in harvest and 

it was affecting shelf life and arrival value of onions at the direct cost to Winter 

Garden Produce of over $75,000. Winter Garden Produce also had to abandon 35 

acres of cabbage because some of the cabbage harvesting workforce switched to 

onion clipping crews because of the shortage of workers. The sales value on that 

field alone was over $175,000. That field along with the onion harvest being 2 weeks 

behind schedule cost our company over a quarter of a million dollars in 2006. 

This past season had every sign pointing toward a larger labor shortage than the 

year before. Early in May of 2007, Winter Garden Produce was running 4–5 days 

96

behind on our harvest schedule and then the rains came. We completely lost an 

onion field that had a sales value of $250,000. In the same study mentioned above 

conducted by Texas A&M University, the total onion industry in Texas experienced 

around a 21 percent decrease, or 1051 workers, from the 2006 season. The economic 

impact from the labor shortage during the 2007 spring onion season in Texas was 

very substantial. Texas losses in business activity related to agricultural support 

such as field operation, harvesting and packing, pesticides and chemical manufacturing, and farm machinery and equipment were estimated at $15 million, while associated income losses are an additional $7.2 million and additional job losses were 

estimated to be 310. 

Timing is crucial. Farmers, growers, and producers need help now, not when Congress feels like they can get to it. Texas has always relied on a legal guest worker 

supply from Mexico. That labor force is becoming smaller and smaller and there is 

currently no measurable way to replace it. Every year the shortage becomes worse 

and worse. If we continue down this same path the agricultural industry in Texas 

as we know it will no longer exist. 

We have to have major immigration reform on the Federal level, or we are going 

to see an accelerated decline of our labor intensive agriculture including the fruit 

and vegetable business. Local workers simply are not available to do this work; it 

is not a matter of wages. We must have a legal means to secure this workforce. Because of the seasonality and perishable nature of our industry, we are at a greater 

risk than most sectors of the U.S. economy. Texas agriculture simply cannot endure 

a large scale work shortage and additional loss of our labor force. Mexican workers 

will harvest much of Texas produce for U.S. consumers; it is simply a question of 

whether they will harvest crop in U.S. or Mexico. According to the Texas Produce 

Association half of the fruits and vegetables being shipped in Texas are already 

being grown across the border. The crop which I have experienced the greatest labor 

shortage, onions, has increased in Mexico by 12,304 acres since 1996. Cabbage, spinach, broccoli and carrot acreage has also increased by over 26,000 acres during the 

sane time frame. During roughly the same time period (1999–2006) shipments from 

Texas decreased by 77 million pounds of the same commodities. As you can see a 

large potion of the Texas industry has already shifted into Mexico and it will continue to do so until we fix problems here on U.S. soil. Not only am I concerned about 

my own business, I am worried that all domestic agriculture will have to follow this 

trend of going abroad and overseas. We are already dependent on foreign oil imports 

and if we become reliant on food imports, we are in grave danger. 

Clear, sensible workplace enforcement combined with a temporary guest worker 

program and a realistic way to retain our existing, experienced workers would better secure our borders since fewer people would try to come in illegally. It would 

restore law and order by giving employers incentives and tools to reliably verify an 

employee’s legal status and avoid undeserved criminalization. In addition, it would 

make sure we avoid a disastrous labor shortage which would, in turn, jeopardize 

skilled jobs filled by Americans, and possibly disrupt the food supply which could 

lead to higher prices for American families. 

A comprehensive approach, including AgJOBS which is gaining momentum in the 

Senate and a sensible Daily Crossing Program which Texas along with Arizona and 

California are exploring, is the only way to strengthen our border and increase 

homeland security. Continuing with the ‘‘Border security only’’ policy with out addressing all facets of the issue will be disastrous. A guest worker program, including 

a legal path for the workers that are already here, coupled with workplace screening, will provide an orderly, legal process for making sure employers and needed 

workers are matched. This will give our border patrol agents the ability to focus on 

terrorists, drug traffickers and other criminals.

J ALLEN CARNES, 

President, Winter Garden Produce, Inc.; 

Vice President, Carnes Farms, Inc.; 

Chairman, Texas Vegetable Association; 

Director, Texas Produce Association; 

Director, South Texas Onion Committee.

Mr. MAHONEY. Thank you very much. Mr. Smoak, please try to—

because we have another vote coming up here, let us try to get 

through. If you can be as precise as possible, but I want to give you 

your opportunity to talk since you’ve been so patient to wait. So let 

us see if we can’t get through this efficiently. Mason. 

97

STATEMENT OF MASON G. SMOAK, CITRUS PRODUCER AND 

CATTLE RANCHER, LAKE PLACID, FL 

Mr. SMOAK. Thank you, Mr. Chairman. I sincerely appreciate the 

opportunity to testify in front of this esteemed Committee today on 

behalf of my fellow citrus growers in the great State of Florida. I 

want to thank Congressman Tim Mahoney who represents my 

hometown, Lake Placid, for his steadfast support of agriculture, 

specifically specialty crops such as citrus, which is a major economic engine in our rural Florida community. 

Our industry generates a statewide economic impact of close to 

$9 billion a year and is the heart of my family’s operation. In Florida, we produce almost 80 percent of all orange juice consumed in 

the United States. We supply a wholesome product that provides 

our fellow citizens with essential vitamins and nutrients. 

My grandfather started our business back in 1933 with a fourth 

grade education and 10 acres of thrown away orange grove. 

Through many years of hard work and many blessings from the 

good Lord above, that business has grown to over 3,100 acres of citrus and 13,000 plus acres of cattle and ranchland and wildlife conservation areas. 

As a third generation Florida citrus grower, the issue of ag labor 

is critical to my family’s business. The importance of maintaining 

a safe, affordable and abundant domestic food supply is something 

many Americans care deeply about and is something I know growers care deeply about as well. Shifting food production from our 

shores to overseas could compromise food security and in turn 

homeland security. 

If our citrus crop is left in the grove to rot because of labor shortages, then our nation’s citrus production will eventually shift entirely to Central and South America. This is not an attempt by me 

to paint a doomsday scenario. It is a reality of fruit and vegetable 

production in this country and specifically the Florida citrus industry. 

I have heard and read many criticisms directed at farmers that 

say the solution to our labor issue lies in either paying workers 

more or turning to mechanical harvesting. I am proud of the rates 

we pay our workers in Florida. A Florida harvester in the citrus 

business averages close to $10 an hour, and I think that is good. 

As for mechanical harvesting, it is something we are interested 

in using, and I hope the industry’s mechanical harvesting program 

continues to receive support from Congress. It sure is a lot easier 

to manage a few machines than it is a large harvesting crew. As 

growers, we have taxed ourselves and actively worked through our 

trade associations to lobby our State and Federal Representatives 

for research funds to study mechanical harvesting and abscission 

chemicals to make the process easier. However, these machines are 

multi-million dollar pieces of equipment that are not financially 

feasible for all growers to use at this time. 

More importantly is the fact that the machines are not technologically to the point where we can harvest fruit without causing 

long-term tree damage as well as fruit damage. Even if we could, 

mechanical harvesting still requires a crew of workers to glean 

what fruit is left behind after the machines have passed. 

98

Mechanical harvesting provides Florida growers with hope; however, the process still has a long way to go before it becomes an 

industry standard. So in the current environment, growers have 

two options. We either have to try to find domestic workers 

through traditional methods or use the costly and cumbersome H–

2A Agricultural Guest Worker Program. 

Please believe me when I tell you that we want legal workers. 

The last thing a grower wants to do is lay in bed at night and stay 

awake wondering if his workforce is legal. We have plenty of other 

things to worry about, including weather, plant pests and diseases 

and energy costs. We want legal workers. 

In conclusion, we have worked very hard as an industry with our 

partners in the agricultural community to push Congress to create 

an efficient guest worker program that serves us better than the 

current H–2A Program. As an industry, we are disappointed that 

our best efforts toward comprehensive immigration reform failed to 

pass this year. We are going to continue to work hard until some 

kind of solution is eventually crafted. 

The future sustainability of American agriculture is very important to me as a farmer raising three children with my wife Tracee. 

My family understands it is essential to have legal, reliable workers harvesting our crops and helping put orange juice on the breakfast tables across America. We also understand that without these 

legal reliable workers, Florida citrus industry will be another 

closed chapter in the history of U.S. agriculture. 

I thank the Committee for your time and look forward to your 

questions. 

[The prepared statement of Mr. Smoak follows:]

PREPARED STATEMENT OF MASON G. SMOAK, CITRUS PRODUCER AND CATTLE

RANCHER, LAKE PLACID, FL 

Thank you Mr. Chairman. 

I sincerely appreciate the opportunity to testify in front of this esteemed Committee today on behalf of my fellow citrus growers in the great State of Florida. 

I want to thank Congressman Tim Mahoney who represents my hometown of 

Lake Placid for his steadfast support of agriculture, specifically Specialty Crops such 

as Citrus, which is a major economic engine in rural Central Florida. The Florida citrus industry generates a statewide economic impact of close to $9 

Billion a year and is the heart of my family’s business. In Florida we produce almost 

80% of all orange juice consumed in the United States. We supply a wholesome 

product that provides our fellow citizens with essential vitamins and nutrients. 

My grandfather started our family business in 1933 with a fourth grade education 

and 10 acres of thrown away grove. Through years of hard work along with countless blessings from the Lord, that business has grown to over 3,100 acres of citrus 

and 13,000 acres of cattle ranchland and wildlife conservation areas. As a 3rd generation Florida citrus grower the issue of ag labor is critical to my family’s business. 

The importance of maintaining a safe, affordable and abundant domestic food supply is something many Americans care deeply about and is something I know growers care deeply about also. 

Shifting food production from our shores to overseas could compromise food security and in-turn homeland security. 

If Florida’s citrus crop is left in the grove to rot because of a labor shortage then 

our Nation’s citrus production will eventually shift entirely to Central and South 

America. 

This is not an attempt by me to paint a doomsday scenario, it is the reality of 

fruit and vegetable production in this country and specifically the Florida citrus industry. 

I’ve heard and read many criticisms directed at farmers that say the solution to 

our labor issue lies in either paying workers more or turning to mechanical harvesting equipment. 

99

But I’m here to tell you that the minimum wage rate in Florida is $6.67 an hour 

which is higher than the Federal wage rate of $5.85. In Florida a worker harvesting 

citrus averages close to $10.00 an hour. 

I’m proud of the salaries we pay our employees.

As for mechanical harvesting it is something we are very interested in using and 

I hope the industry’s mechanical harvesting program continues to receive support 

from Congress. It sure is a lot easier to manage a few harvesting machines than 

a large workforce. As growers we have actively worked through our trade associations such as Florida Citrus Mutual to lobby our State and Federal Representatives 

for research funds to study mechanical harvesting and abscission chemicals to make 

the process easier. 

However, these machines are multi-million dollar pieces of equipment that are not 

financially feasible for medium and small growers to use at this time. More importantly is the fact that the machines are not technologically to the point where we 

can harvest fruit without causing long term tree and fruit damage. 

Even if we could, mechanical harvesting still requires a crew of workers to glean 

what fruit is left on the tree and ground. 

Mechanical harvesting provides Florida growers with hope, however, the process 

still has a long way to go before it becomes an industry standard. 

So in the current environment growers have two options: 

We either have to try to find legal domestic workers through traditional methods 

or use the costly and cumbersome H–2A Agricultural guest-worker program. 

Please, believe me when I tell you that we want legal workers. 

The last thing that a grower wants to keeping him awake at night is wondering 

about the legal status of his workforce. 

We have plenty of other things to worry about with weather, plant pests and diseases, and energy costs. 

I’ll reiterate: We want legal workers.

In conclusion we have worked very hard as an industry with our partners in the 

agricultural community to push Congress to create an efficient guest worker program that serves us better than the current H–2A process. 

As an industry we are disappointed that our best efforts toward comprehensive 

immigration reform failed to pass this year. 

We are going to continue to work hard so that some kind of solution is eventually 

crafted. 

The future sustainability of American agriculture is very important to me as a 

farmer raising three children alongside my wife Tracee. My family understands it 

is essential to have legal, reliable workers harvesting our crops and helping put orange juice on breakfast tables across America. We also understand that without 

legal, reliable workers, Florida’s citrus industry will be another closed chapter in the 

history of U.S. agriculture. 

I thank the Committee for your time.

Mr. MAHONEY. Thank you, Mr. Smoak. We have time for one 

more 5 minute presentation. Mr. Yates. 

STATEMENT OF HARRY B. YATES, PAST-PRESIDENT, NORTH 

CAROLINA CHRISTMAS TREE ASSOCIATION; MEMBER, 

BOARD OF DIRECTORS, NATIONAL CHRISTMAS TREE

ASSOCIATION, BOONE, NC 

Mr. YATES. Thank you. I am extremely honored and humbled 

that you have asked me to speak before this esteemed Committee. 

I farm and live in beautiful Boon, North Carolina. I began growing 

Christmas trees 32 years ago in the rugged mountains of western 

North Carolina. I have served the Christmas tree industry as 

President of the North Carolina Christmas Tree Association and on 

the Board of Directors of the National Christmas Tree Association. 

This is my tenth year using H–2A employees. I employ seven 

men for 91⁄2 months and three to six additional men for the harvest 

season. Christmas trees are an extremely labor intensive agricultural crop. Each tree receives eight to ten visits per year from a 

farm worker for the 8 to 10 year life cycle of that tree. Each activity requires physical labor and challenging geographic conditions. 

100

These challenges, along with the seasonality of the job, mean the 

Christmas tree industry must have guest workers. 

I made the decision 10 years ago to participate in the H–2A Program because it was impossible to find legal workers seeking agricultural employment. I also strongly believe that workers should be 

documented. However, when I made my decision to participate in 

H–2A, little did I know that I was putting myself in a serious competitive disadvantage in the Christmas tree industry. 

The national real Christmas tree industry faces severe economic 

challenges with the Chinese-produced artificial tree. We are losing 

market share every year. Labor is our single largest production expense. I am one of the few Christmas tree growers who use H–2A. 

Most growers don’t use H–2A because it is too expensive and too 

burdened with regulations. Some quick examples: By using H–2A, I pay $1,000 per year per 

man, which covers visa fees, transportation costs, association fees, 

et cetera. By law, the U.S. Department of Labor tells me that I have to pay an Adverse Effect Wage Rate, which is $9.02 for 2007 

in North Carolina. This wage rate has increased 76 percent in the 

last 16 years. I now know why they call it Adverse Effect Wage 

Rate because it is certainly adversely affecting my family farm. 

By law, I am required to provide free of charge government-inspected housing, transportation, utility costs, and all other costs 

that go along with housing and transportation. Non-H–2A growers 

don’t provide these benefits to their workers. They provide it for 

themselves, just like most Americans do. I also pay workman’s 

compensation. When you total these expenses, my labor cost is $14 an hour and climbing every year through H–2A. My competitors pay $7.50 to $8 

an hour. It is extremely difficult to farm profitably at these costs. 

It is truly contrary to the American way that farmers who do 

things the legal and proper way are punished economically. 

What should Congress do to make the H–2A Program more 

workable? I have three basic concepts here. Number one, entry 

level wages should be prevailing and should be ‘‘flexibility’’-allowed 

so that we may reward our long-term key employees with higher 

rates of pay. Our wage rate now is so high that we don’t have that 

flexibility. 

Growers and workers should be required to resolve legal issues 

through mediation and arbitration. And number three, the bureaucratic processes at the Department of Labor, Homeland Security, 

and State Department must be streamlined and simplified. Given 

the current delays with only 50,000 H–2A workers nationally, drastic reforms must be made if we are to provide upwards of one million workers per year. 

I truly appreciate the H–2A Program and the continuity and the 

stability it provides on my small family farm. However, I do understand why many growers are afraid to use the program. It is too 

expensive. It is too complicated. It is too slow, and it is too likely 

to land you in court. 

Please fix H–2A with prevailing wage, required mediation, and 

streamline the process. Agriculture, our nation’s food supply, and 

in fact the very security of our nation depends on Congress getting 

this one right. Thank you. 

101

[The prepared statement of Mr. Yates follows:]

PREPARED STATEMENT OF HARRY B. YATES, PAST-PRESIDENT, NORTH CAROLINA

CHRISTMAS TREE ASSOCIATION; MEMBER, BOARD OF DIRECTORS, NATIONAL

CHRISTMAS TREE ASSOCIATION, BOONE, NC 

I would like to thank the Committee for holding this important hearing on agricultural labor. My name is Harry Yates. I farm and live in beautiful Boone, North 

Carolina. I began growing trees 32 years ago in the mountains of western North 

Carolina. I have served the Christmas Tree industry as President of the North Carolina Christmas Tree Association, and as a Member of the National Christmas Tree 

Association Board of Directors. 

This is my 10th year using H–2A and I employ seven workers for 91⁄2 months and 

three to six additional workers for the Christmas tree harvest season. 

Christmas trees are an extremely labor intensive agricultural crop. Each tree receives eight to ten visits per year from a farmworker to complete various treatments. This occurs each season during the 8 to 10 year life of the tree from planting 

to harvest. Each activity requires physical labor in challenging geographic and climatic conditions. These challenges, along with the seasonality of the job mean that 

the Christmas tree industry needs temporary, seasonal workers. 

I made the decision 10 years ago to participate in the H–2A program because it 

was impossible to find legal workers seeking agricultural employment and I strongly 

believe that workers should be properly documented. However, when I made my decision to go H–2A, little did I know that I was putting myself at a serious competitive disadvantage in the industry. 

The real Christmas Tree industry faces serious economic challenges with Chinese 

produced artificial trees. Labor is the single largest production expense. I’m one of 

the few growers who use the H–2A program—most don’t use it because it is too expensive, too litigious and too burdened with regulations. For example:

1. By using H–2A, I have to pay almost $1,000.00 a year per man, which covers 

visa fees, transportation, association costs and other government fees.

2. By law, the U.S. Department of Labor tells me I have to pay an ‘‘Adverse 

Effect Wage Rate’’, which is $9.02 per hour for 2007. DOL has raised this wage 

rate 76% over the last 16 years. I know now why they call it the ‘‘Adverse Effect’’ wage rate—because it certainly is ‘‘Adversely Effecting’’ my family farm. 

Non H–2A growers pay around $7.50 per hour!

3. By law, I am required to provide (free of charge) government inspected housing (including all utilities and repair costs) and all local transportation. Non H–

2A growers don’t have to provide these benefits, their worker’s provide it for 

themselves—just like American workers have to do every day!

4. By law, I have to pay for workman’s compensation insurance for all employees.

When you total these expenses my labor cost is at least $14.00 per hour and 

climbing every year (and again my competitor pays around $7.50 per hour). It is 

extremely difficult to farm profitably at these costs. 

It is truly contrary to the American way that the farmers who do things the legal 

and proper way are punished economically. We should be heralded, not sued. 

What should Congress do to make the H–2A program more workable for ag?

1. Entry-level wages for first time workers should be prevailing wage and flexibility should be allowed so that loyal, long-term employees can be rewarded 

with a higher pay rate set by the farmer.

2. Growers and workers should be required to resolve legal issues through mediation and arbitration before going to court. This is nothing new—Americans 

sign these type of contracts every day, why can’t H–2A workers.

3. The bureaucratic process at three Federal agencies (Labor, Homeland Security, the State Department) must be streamlined & simplified. Given the current delays with only 50,000 H–2A workers nationally, drastic structural reforms must be made if the program is to provide upwards of 1,000,000 workers 

per year in the future.

I appreciate the H–2A program and the continuity/stability it provides on my 

small family farm. But, I understand why so many growers are afraid to use this 

program—it is too expensive, too complicated, too slow, and too likely to land you 

in court. Please fix it with true prevailing wage, required mediation and a streamVerDate 0ct 09 2002 10:21 May 05, 2009 Jkt 041481 PO 00000 Frm 00105 Fmt 6633 Sfmt 6621 I:\DOCS\110-30\48999.TXT SOLEM PsN: REBEKA
102

lined process. Agriculture, our nation’s food supply, and in fact the very security of 

our nation depends on Congress getting this right. 

Thank you,

HARRY B. YATES.

Mr. MAHONEY. And with that, we are going to unfortunately 

have to adjourn for probably—if you could, be back here in recess 

for how long? Two votes? If you could be back in 20 minutes, and 

we will try to move on quickly. Thank you very much. We are going 

to be in recess. 

[Recess.] 

Mr. MAHONEY. You want me to continue in the chair, Mr. Chair? 

Okay, this is putting a lot of pressure on a rookie. Okay, we have 

testimony of three additional people. Let us start with Mr. Mouw. 

STATEMENT OF RANDALL D. MOUW, DAIRY PRODUCER;

CHAIRMAN, DISTRICT 12, CALIFORNIA MILK ADVISORY 

BOARD, ONTARIO, CA; ON BEHALF OF WESTERN UNITED 

DAIRYMEN; DAIRY FARMERS OF AMERICA; AND NATIONAL 

MILK PRODUCERS FEDERATION 

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

looking at the labor needs of our farms and ranches. My name is 

Randy Mouw. My wife Rose and I milk 1,400 cows in Ontario, California with 17 employees. One of our sons started his own dairy 2 

years ago, and my other son works for us as Assistant Manager. 

I am here today on behalf of Western United Dairymen, which 

represents more than 1,100 of the 1,800 dairy families in the State 

of California, my cooperative, Dairy Farmers America, which markets 1⁄3 of the milk in the U.S. and has member producers in 48 

states and National Milk Producers Federation, which represents 

dairy producers and the cooperatives they collectively own. 

The availability of labor on this country’s dairy farms is critical 

to those in our industry, but has far wider implications for so many 

other sectors of the economy. Large herds or small and in all parts 

of the country, dairies are family owned and operated, but additional labor is a must. Dairy farming is labor intensive, and well 

trained, outside labor is a necessity on most farms. 

All of the organizations I mentioned earlier are part of the Ag 

Coalition for Immigration Reform. This broader based coalition 

that has been seeking a fair, sensible, and workable program to 

provide labor to our nation’s farmers and ranchers before it becomes a crisis. 

Like the Coalition, I believe this issue is about border security, 

food security, labor force security, and economic security. Immigration reform is a must for U.S. agriculture. I can tell you from my 

own experience that not one person that has worked on my dairy 

in the last 5 years has been born in America. 

And this is not a matter of cheap labor. I would invite any Member of Congress who believes that to come and walk just a day in 

my shoes. The jobs on my dairy are year round, relatively high paying, and we provide a number of benefits including health care, bonuses, and opportunities for advancement. No, it is not a matter 

of wanting cheap labor. It is a matter of having any labor at all. 

Let me add here early and emphatically that I am a strong supporter of the effective border security, as is every other dairy farmVerDate 0ct 09 2002 10:21 May 05, 2009 Jkt 041481 PO 00000 Frm 00106 Fmt 6633 Sfmt 6601 I:\DOCS\110-30\48999.TXT SOLEM PsN: REBEKA
103

er I know. People should not be coming to this country illegally, but 

it is the responsibility of this Congress to find political, viable solutions and enact them. 

The farmers I know would also like to see recognition by the 

Congress that this is nothing less than a food security issue for our 

country. The headlines of the day tell us we are too dependent on 

other countries for oil, and we don’t want to go down that road 

with being food dependent as well. Sure, our food can be produced 

elsewhere. The question is why would we make that choice? 

We also read about outsourcing and jobs leaving this country. I 

have already been asked to relocate to China with my business. 

Without sensible immigration reform, the outsourcing of our food 

production and processing is a very real possibility. Is that what 

consumers really want? By all accounts, border and port agents inspect only a very small percentage of food shipments coming into 

the country, while every tanker load of milk I ship is tested. Every 

animal I sell is inspected for safety and quality. Consumers can 

take a great amount of reassurance for so rigorous a system. 

Farmers all across the country have supported several attempts 

by the Congress to enact comprehensive immigration reform. For 

many reasons, that has not happened. I am here today to join with 

other witnesses at this hearing to encourage Congress to enact 

what is achievable: to improve labor force security by providing a 

sensible, fair, and workable program for a legal immigrant agricultural workforce. 

Jobs on dairies are year round. You have heard this before, but 

I am going to say it again. The H–2A Program does not work for 

dairy. Like many dairymen, I milk my cows three times a day, and 

that means there is a harvest on my farms three times a day, 365 

days a year. The H–2A Program, on top of all the other issues 

raised today, requires both the worker and the job to be seasonal 

and temporary. We gave up seasonal dairy in this country 50 years 

ago, and that is part of why we are the most competitive volume 

milk producing country in the world. 

For dairy, there are three key principles that must be included 

in the legislation solution. One, an affordable and efficient guest 

worker program that ensures the continued availability of immigrant labor for all of agriculture, including dairies. Two, a provision 

that allows those currently employed or with recent employment 

history in the U.S. to earn the right to work here legally regardless 

of their current legal status. Three, a provision that specifies the 

responsibility for ultimate verification of legal status of a worker 

by the government, not with employers. 

I have workers at my dairy who have been with me for more 

than 15 years. In addition to enjoying relatively high paying, year 

round jobs with some benefits, many of them perform work that requires a significant amount of training and skill. The cows must be 

well cared for or milk quality suffers, and my culling rate goes up, 

both with negative effects on my bottom line. 

Milk is also one of the most perishable foods produced in this 

country. It cannot be stored for long periods on the farm or waiting 

for a better price or labor to harvest it. The jobs on my dairy working with cows and equipment are not for amateurs. Well trained 

104

workers are simply a necessity on my dairy, and nearly all other 

dairies in the country, every day of the year. 

Farms also provide open space, and that is very important in my 

part of southern California. When a dairy farm goes out, houses 

and parking lots come in. Milk production in California is the largest industry in the state. It has a farmgate value last year of nearly $5 billion and contributes $47.4 billion and 434,000 jobs to the 

California economy. Average herd size in California is now about 

900 cows, and our dairy farms are large because there is a large 

population to supply. 

Farm land is expensive so economies of scale are the rule instead 

of the exception. Producing a lot of milk is a necessity in order to 

cash flow the cost of land, not to mention the cost of all that corn 

that California dairy farmers have to buy from the Midwest each 

day. That all adds up to the need for outside labor, but people who 

were born in this country do not seem to be interested in jobs on 

our dairy farms. So dairymen have turned to those who are willing 

to do this kind of work. 

Some of my employees have been with me for many years, and 

it is the same for most dairymen I know. Some of those employees 

are like family to us. I have had employees come to me for advice 

on family issues, like how to deal with certain situations for their 

kids and where to buy a house. Like all families, we are dedicated 

to one thing: getting the job done for ourselves and our children. 

Thank you again for the opportunity to be here today. And no 

one in the dairy business has set out to break the law. Dairy farmers need labor, and seeing an unmet need, workers have come here 

for an opportunity. What we need now is an enforceable law that 

provides a workable solution to this problem this year. Nothing less 

than the food security of this nation and the economic health of 

rural communities are at stake. Thank you. 

[The prepared statement of Mr. Mouw follows:]

PREPARED STATEMENT OF RANDALL D. MOUW, DAIRY PRODUCER; CHAIRMAN, DISTRICT 12, CALIFORNIA MILK ADVISORY BOARD, ONTARIO, CA; ON BEHALF OF

WESTERN UNITED DAIRYMEN; DAIRY FARMERS OF AMERICA; AND NATIONAL MILK

PRODUCERS FEDERATION

Good afternoon Chairman Peterson, Ranking Member Goodlatte and Members of 

the House Agriculture Committee. I want to thank you for holding this hearing to 

look into the labor needs on our nation’s farms and ranches. While I’m told we are 

not here to take an in-depth look at any specific legislation, I am happy to be here 

to add my voice to those calling for a Federal legislative solution to the single most 

difficult challenge facing food production in this country today. 

My name is Randy Mouw. My wife Rose and I milk 1,400 cows in Ontario, California with 17 employees. One of our sons started his own dairy 2 years ago and 

another son is the assistant manager on our dairy. I am here today on behalf of 

Western United Dairymen, which represents more than 1,100 of the 1,800 dairy 

families in the State of California; my cooperative, Dairy Farmers of America, which 

markets 1⁄3 of the milk in the U.S. and has Member producers in 48 states; and National Milk Producers Federation, which represents dairy producers and the cooperatives they collectively own. NMPF member cooperatives, including DFA, market about 70% of the milk in the country. 

The availability of labor on this country’s dairy farms is critical to those in our 

industry, but it has far wider implications for so many other sectors of the economy. 

Large herds or small, and in all parts of the country, dairies are family owned and 

operated, but additional labor is a must. Dairy farming is labor intensive and well 

trained outside labor is a necessity on most farms. 

All of the organizations I mentioned earlier are part of the Agriculture Coalition 

for Immigration Reform, the broader-based coalition that has been seeking a fair, 

105

sensible and workable program to provide labor to our nation’s farmers and ranchers before it becomes a crisis. Like the Coalition, I believe this issue is about border 

security, food security, labor force security and economic security. 

Immigration reform is a must for U.S. agriculture because I can tell you from my 

own experience that not one person who has walked on my dairy looking for work 

in the past 5 years is a person who was born in this country. And based on my conversations with other dairymen, they will tell you the same story. 

This is not a matter of cheap labor, either. I would invite any Member of Congress 

who believes that to come and walk just a day in my shoes. The jobs on my dairy 

are year-round, relatively high paying and we provide a number of benefits including—health care, bonuses, and opportunities for advancement. No, it’s not a matter 

of us wanting cheap labor—it is a matter of us having any labor at all. 

Let me add here early and emphatically that I am a strong supporter of more effective border security as is every other dairy farmer I know. People should not be 

coming to this country illegally. But the fact is people are coming to this country, 

sometimes legally, sometimes not, in search of an opportunity for a better life. And 

ordinary U.S. citizens, including small businessmen like me, cannot be put in the 

position of being made ‘‘la migra,’’ or the ‘‘immigration police,’’ responsible for sorting the real documents from the fake ones. It is the responsibility of the Congress 

to find politically viable solutions and enact them. 

The farmers I know would also like to see recognition by the Congress that this 

is nothing less than a food security issue for our country. The headlines of the day 

tell us we’re too dependent on other countries for oil; we don’t want to go down the 

road of being food dependent as well. Sure, our food can be produced elsewhere. The 

question is why would we make that choice? We also read about outsourcing, and 

jobs leaving this country. I have already been asked to relocate to China, with my 

business. Without sensible immigration reform, the outsourcing of our food production and processing is a very real possibility. Is that what consumers really want? 

By all accounts border and port agents inspect only a very small percentage of 

food shipments coming into this country while every tanker load of milk I ship is 

tested and every animal I sell is inspected for safety and quality. Consumers can 

take a great amount of reassurance from so rigorous a system. 

Farmers all across the country have supported several attempts by the Congress 

to enact comprehensive immigration reform. For many reasons, that has not happened. I am here today to join with other witnesses at this hearing to encourage 

the Congress to enact what is achievable—to improve labor force security by providing a sensible, fair and workable program for a legal immigrant agricultural 

workforce. 

Jobs on dairies are year-round. You have doubtless heard this before but I must 

say it again—the H–2A program does not work for dairy. Like many dairymen, I 

milk my cows three times per day. That means there is a harvest on my farm three 

times a day 365 days a year, weekends and holidays included. The H–2A program, 

on top of all the issues others have raised about it here today, requires both the 

worker and the job to be seasonal and temporary. We gave up seasonal dairying in 

this country 50 years ago and that is part of why we are the most competitive volume milk producing country in the world. 

Something else we gave up in this country many years ago is asking job applicants certain questions because of what they look like. I don’t know the residency 

status of my workers because our anti-discrimination laws prevent me from asking. 

Let’s not return to those bad old days now. 

For dairy, there are three key principles that must be included in a legislative 

solution: (1) an affordable and efficient guest worker program that ensures the continued availability of immigrant labor for all of agriculture, including dairies; (2) a 

provision that allows those currently employed or with recent employment history 

in the U.S. to earn the right to work here legally, regardless of their current legal 

status; and (3) a provision that specifies the responsibility for ultimate verification 

of the legal status of a worker lies with the government, not with employers. 

I have workers at my dairy who have been with me for more than 15 years. In 

addition to enjoying relatively high paying year-round jobs with some benefits, 

many of them perform work that requires a significant amount of training and skill. 

The cows must be well cared for or my milk quality suffers and my culling rate goes 

up, both with negative effects on my bottom line. And mechanization is not an option for all jobs on dairies. Cows must be monitored at calving and young calves 

need specific kinds of care. Robotic milking machines may work for some operations 

but the technology still needs to be perfected and the cost to purchase and install 

them must come down significantly for them to be a viable option on a large dairy. 

Milk is also one of the most perishable foods produced in this country. It cannot 

be stored for long periods on the farm awaiting a better price or labor to harvest 

106

it. The jobs on my dairy, working with cows and equipment, are not for amateurs. 

Well-trained workers are simply a necessity on my dairy and nearly all other dairies 

in the country every day of the year. Farms also provide open space. That is very 

important in my part of southern California. When a dairy farm goes out, houses 

and parking lots come in. 

Milk production in California is the largest sector of the largest industry in the 

state. It had a farmgate value last year of nearly $5 billion and contributes $47.4 

billion and 434,000 jobs to the California economy. Average herd size in California 

is now about 900 cows. Our dairy farms are large because there is a large population to supply. And farmland is expensive so economies of scale are the rule instead of the exception. Producing a lot of milk is a necessity in order to cash flow 

the cost of the land, not to mention the cost of all of that corn that California dairy 

farmers buy from the Midwest each day. That all adds up to the need for outside 

labor. But people who were born in this country do not seem to be interested in jobs 

on dairy farms so dairymen have turned to those who are willing to do this kind 

of work. 

Some of my employees have been with me for years. It’s the same for most dairymen I know and some of those employees are like family to us. I have had employees come to me for advice on family issues like how to deal with certain situations 

with their kids and when and where to buy house. Like all families we’re dedicated 

to one thing—getting the job done for ourselves and our children. 

Thank you again Chairman Peterson, Ranking Member Goodlatte, my Congressman, Representative Joe Baca, and the other Members of the Agriculture Committee. No one in the dairy business has set out to break the law. Dairy farmers 

need labor and, seeing an unmet need, workers have come here for an opportunity. 

What we need now is an enforceable law that provides a workable solution to this 

problem this year. Nothing less than the food security of this nation and the economic health of rural communities are at stake.

Mr. MAHONEY. Thank you, Mr. Mouw. Mr. Atkinson. 

STATEMENT OF KEITH ATKINSON, PRESIDENT, VIRGINIA

AGRICULTURAL GROWERS ASSOCIATION; APPLE AND

TOBACCO PRODUCER, JAVA, VA 

Mr. ATKINSON. Good afternoon, Mr. Chairman, Ranking Member 

Goodlatte, and other Members of the Committee. My name is Keith 

Atkinson. Along with my wife and four children, two of whom are 

in college, two to enter college soon, I own and operate a family 

farm in Southside, Virginia. 

Were it not for the H–2A Program, we would be unable to farm 

at all. However, this program has become so burdensome and costly it is threatening our ability to continue. 

I am also President of the Virginia Agricultural Growers Association, an association of Southside, Virginia family farms formed 

nearly 30 years ago to share the expense of complying with the 

guest worker program. In 1998, our association has 579 farm members. Today, we only have 270 left. Many of our farmers quit farming because they were unable to meet the H–2A Program burdens, 

among them, the so-called Adverse Effect Wage Rate. 

AEWR rates are much higher than area prevailing rates. Every 

year, the AEWR increases on a percentage basis. Our AEWR minimum wage went from $8.51 to $9.02 effective February 21, 2007. 

That is 6 percent. Incidentally, this is over ten times the wage rate 

these H–2A guest workers could earn in Mexico. In the future, H.R. 

1792 ties H–2A wages to actual prevailing wages in similar jobs. 

H.R. 1792 corrects an additional obligation several courts have imposed on agriculture, particularly guest worker programs. 

Under this erroneous view, when workers are paid their wages 

for the first week of employment after relocation to accept employment, they must be reimbursed their relocation transportation cost 

107

from their homes to the extent those costs would otherwise cut into 

the worker’s minimum wages for that first week, as required by the 

Fair Labor Standards Act of 1935. There is no principal reason, no 

applicable FLSA exemption, special clause to treat agriculture or 

the temporary worker program differently than any other employment. 

Current Internet advertisements for applicants for jobs with the 

United States Houses of Representative plainly state, ‘‘transportation and all related travel expenses associated with interview 

and hiring process must be paid by the applicant. Moving and related relocation expenses are not available.’’ I am puzzled as to why 

farm operations are held to different standards than our own government is. 

Under the previous H–2A Programs, several courts ruled that 

the Department of Labor could only enforce a requirement still applicable in the H–2A Program that farmers reimburse relocation 

expenses once workers work 50 percent of the period they agree to 

work. You will see that nobody ever argued that FLSA requires 

first paycheck transportation reimbursement to avoid a minimum 

wage violation. Any adverse ruling, while not law, tends to have 

the same effect as law. 

Growers have been attempting to obtain an opinion letter from 

DOL’s Wage and Hour Division on the transportation reimbursement and related issues since 1992. Without fulfillment of the Administrator’s responsibility to issue formal opinions, and passage of 

H.R. 1792, that recognizes that jobs equally benefit workers and 

employers; the government and many employers including growers 

are in jeopardy of an adverse court ruling on the relocation expense 

issue. 

As small farmers with limited resources, we are totally defenseless against every non-meritorious lawsuit and wage hour claim, 

every unfairly changed legal interpretation of old rules by a DOL 

official. 

We therefore must turn to our elected representatives for help. 

H.R. 1792 also contributes to good immigration policy. Seventy-five 

percent or more of the workers our association members employ 

have been coming here for 10 years or more and returning home 

every year in accordance with H–2A regs. They are not part of an 

illegal workforce. 

The really hard question for this Committee and for the entire 

Congress is are we going to have labor-intense production agriculture that requires guest workers in America in the future? If so, 

the rest is easy. Congressman Goodlatte has already done it for 

you. If not, I feel this Committee owes us the courtesy of telling 

us so we can find another line of work. 

Mr. Chairman, I would invite every Member of this Congress to 

take a trip along the area just east and west of the Allegheny 

Mountain chain that extends from the Northeast through the Mid 

Atlantic to Florida and all of middle America. Take in all those 

beautiful vistas that you will see. The mix of hard woods and evergreens, neatly planted and maintained crops, vineyards, and orchards growing in geometric patterns on those gently rolling hills. 

I want you to take a close look, and I want you to take camera 

because if some serious changes are not made here in this ConVerDate 0ct 09 2002 10:21 May 05, 2009 Jkt 041481 PO 00000 Frm 00111 Fmt 6633 Sfmt 6601 I:\DOCS\110-30\48999.TXT SOLEM PsN: REBEKA
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gress, I can assure you that view and that part of the American 

economy will be gone forever in a very few years. Thank you for 

your attention. 

[The prepared statement of Mr. Atkinson follows:]

PREPARED STATEMENT OF KEITH ATKINSON, PRESIDENT, VIRGINIA AGRICULTURAL

GROWERS ASSOCIATION; APPLE AND TOBACCO PRODUCER, JAVA, VA 

Good morning Mr. Chairman, Ranking Member Goodlatte, and other Members of 

the Committee:

My name is Keith Atkinson. Along with my wife and four children, two of whom 

are in college, two to enter college soon, I own and operate a family farm in Southside, Virginia. Were it not for the H–2A guest worker program, broken, costly, and 

perilously litigation-prone as it is, we would be unable to farm at all. 

I also serve as President of the Virginia Agricultural Growers Association (VAGA), 

an association of Southside, Virginia family farmers formed nearly 30 years ago to 

share the expenses of completing legally required procedures to obtain temporary 

foreign workers. In our rural areas, we already could not locate enough U.S. workers—local workers or Americans from other areas—who were willing to work during 

our peak periods when we could not handle the intense labor needs of our farms 

with our families and a handful of year-round employees. 

When George Vanderbilt decided to build the grandest home ever built in America—The Biltmore—he needed guest workers from abroad. When Franklin Roosevelt 

learned there were not enough able workers left in America to produce the food we 

needed to feed our people at home and troops during World War II, he started what 

has become the critically needed, but very cumbersome, very burdensome guest 

worker program that today is known as the H–2A Program. I doubt either could 

have envisioned the quagmire that American agriculture and small family farms 

face with the red tape required in today’s H–2A Program. 

We still need a guest worker program for agriculture, and I therefore urge the 

passage of the Temporary Agricultural Labor Reform Act of 2007, H.R. 1792, sponsored by Congressman Goodlatte and others whose efforts are much appreciated. 

Once a farmer goes out of business, our experience is that our local and national 

economies and our agricultural production capability have lost that farm capacity 

forever. Compared with 1998 when our Association had 579 farm members, today 

we have fewer than 1⁄2—just 270 farms. One of the most frequently cited reasons 

our region’s farmers go out of business is that they simply cannot continue under 

the burdens of the current H–2A Program—among them the substantially higher 

hourly wage rates we must pay than prevail in our rural areas, even for skilled 

year-round jobs. For example, in my locale, skilled, year-round welders make $10.00 

an hour, whereas I must pay $9.02. (Incidentally, this amount is more than ten (10) 

times the wage rate these H–2A workers could earn in Mexico.) Moreover, I know 

one day next February or March, the Department of Labor (DOL) will publish an 

immediately applicable new minimum wage—what’s called an Adverse Effect Wage 

Rate or AEWR—that may be substantially higher. My farm’s AEWR minimum wage 

went from $8.51 to $9.02 effective February 21, 2007, whereas the Fair Labor 

Standards Act (FLSA) minimum wage for the rest of America went from $5.15 to 

$5.85 in July—that’s a difference of $3.17 an hour. 

I know you will understand the effect of percentage wage increases over time. The 

AEWR base and methodology for increases were established years ago. Over time, 

as the AEWR has been increased simply based on percentage increases in overall 

agricultural pay, the DOLLAR difference between actual prevailing wages and the 

AEWR has increased substantially. Just one of the important improvements H.R. 

1792 makes is to tie H–2A wage rates to actual prevailing wage rates in similar 

jobs. 

On top of these wages, we also must provide free worker housing and utilities, 

bedding, and kitchen equipment, free transportation to and from work every day 

and to the grocery store, and many other employment benefits that no other American employers are required by law to provide their employees. 

Besides these terms and conditions that come from regulations adopted by the 

United States Department of Labor, there are additional obligations that courts 

have imposed that we believe are not required under the FLSA. One such requirement is that at the time workers are paid their wages for their first week of employment, they must be reimbursed their incoming transportation costs from their 

homes in Mexico, to the extent those costs would otherwise cut into the workers’ 

FLSA minimum wages for the hours they worked that first week. This requirement 

109

has been imposed even though the H–2A regulations expressly provide that such expenses are not owed unless and until workers complete 1⁄2 of the period they have 

agreed to work for an employer. This so-called Arriaga requirement, named for the 

case holding that such an FLSA requirement exists, has not generally been applied 

yet outside agriculture or even outside the temporary worker program, but there is 

no principled reason—no applicable exemption or special clause—to treat agriculture or the temporary worker program differently under the FLSA. I am puzzled 

as to why farm operations are held to different standards than our own government 

is held under its official personnel policies. 

You may be interested to know that despite Congressional adoption of the FLSA 

requirements to employees of the Congress, the current Internet advertisements for 

applicants for jobs with the United States House of Representatives plainly state:

‘‘Transportation and all related travel expenses associated with the interview 

and hiring process must be paid by the applicant. Moving and related relocation expenses are not available.’’ See http://www.house.gov/cao-hr/welcome.shtml (copy attached).

Indeed, the Federal Office of Personnel Management authorizes agencies of the 

United States government to offer relocation payment assistance to employees only

in limited circumstances. When such payments are authorized, they are designated 

as a bonus, not as part of the regular wage. These extra payments to defray relocation expenses are not owed as a right under the FLSA at the same time an employee’s wages are paid for the first workweek but only after the employee has entered 

‘‘into a written service agreement to complete a period of employment with the agency, not longer than 4 years.’’ See 5 U.S.C. § 5753 (c)(1) and § 5753 generally and 5 

C.F.R. Parts 572 and 575. See also, www.usajobs.gov.

I submit to you that these stated-written-policies of the House of Representatives 

are in compliance with the FLSA and with the employment policies of the vast majority of American employers who, like the House of Representatives, have no legal 

obligation to reimburse any relocation travel expenses. 

In numerous judicial proceedings under the predecessor H–2 Program, the Courts 

ruled that DOL could not require farmers to advance guest H–2 workers the costs 

of transportation from their homes to their U.S. employers but could only enforce 

an existing requirement that farmers reimburse relocation expenses once workers 

had worked 50% of the period they had agreed to work. Growers had shown the 

courts data that demonstrate what we are experiencing—too many workers collect 

transportation reimbursement and disappear, thereby adding to the ranks of illegal 

workers. I will be glad to provide the case decisions, and if you study these cases, 

you will see that nobody ever argued that the FLSA requires first paycheck transportation reimbursement to avoid a minimum wage violation. 

H.R. 1792 also corrects this Arriaga problem. 

This matter is of critical importance to all employers. Growers have been attempting to obtain an authoritative Opinion Letter from the Administrator of DOL’s Wage 

and Hour Division on the transportation reimbursement and related issues since 

1992. We understand there have been other such requests in the last 15 years. A 

detailed analysis of the issues and law and a renewed request was submitted since 

last year. Besides favorable action on H.R. 1792, we also ask that this Committee 

use its good offices to encourage the Administrator to complete any necessary ‘‘clearance review’’ process on these issues that may include consultation with the Office 

of the Solicitor of Labor and issue an Opinion. Even if there are internal delays outside the Office of the Administrator, at some point the Administrator should fulfill 

the interpretative responsibility resident in that Office under statute and issue a 

formal Opinion. Without fulfillment of the Administrator’s responsibility and passage of H.R. 1792, which recognizes that jobs equally benefit workers and employers, our government—including the Congress-growers, and in fact all employers are 

in jeopardy of a court ruling that their policies of not paying employees’ relocation 

expenses are unlawful. 

In addition to urging adoption of H.R. 1792, I respectfully urge that this Committee restate its intent to retain a key requirement of the existing H–2A program: 

that the Department of Labor must consult with the United States Department of 

Agriculture and the United States Attorney General before issuing regulations to 

implement the H–2A Program. See Section 301(e) of P.L. 99–603, as amended, P.L. 

100–525, Section 2(l)(4), October 24, 1988, 102 Stat. 2612. Meaningful consultation, 

of course, requires more than a delivered copy of what will be published in the Federal Register the next day; meaningful consultation requires a willingness to explain 

why a provision or change is necessary or desirable and to consider alternatives, 

among many other points. 

110

We also ask that this Committee express its concerns about the failure of the 

DOL to fulfill applicable statutory mandates. First, it must consult with the USDA 

and the Attorney General. Second, in accordance with the Administrative Procedure 

Act, it must and publish proposed new regulations and material changes in interpretations of old regulations in the Federal Register if it moves forward with what its 

representative announced to Florida farmers last week would be new requirements 

in a number of areas under the H–2A Program. 

Just one example is that in the future, DOL will take the position that a farmer 

has waived his right to enforce a minimum production work standard if it allows 

a worker who has not met the standard, but who is trying hard and getting better, 

to continue working. 

Another example: DOL will take the position that a friend or retiree who is willing to help out in an H–2A certified job 1 day a week or a few hours on Saturday 

must be treated as a full-time worker in all respects: that means that he and I 

would have to pretend that I had offered him work so many hours a day every day 

and that he had declined those hours; I would have to keep meticulous records of 

hours of work offered above and up to the guaranteed workday and undertake many 

other obligations as though he were a full-time worker OR ELSE, DOL will take 

the position that I owe that part-time—when he wants to or is willing to work—

friend wages for 3⁄4 of the work hours I have guaranteed H–2A and U.S. workers 

I have hired to work full-time for the season. 

There is simply not time to explain in detail the very complex rules we already 

operate under that no other employers must meet. H.R. 1792 addresses some of 

these unnecessary rules that are unfair. Still, all of the work of the Congress can 

be subverted by such new interpretations and new rules as we understand were just 

announced last week in Florida. While those of us who had friends who were at the 

meeting may be able to learn what our friends heard and can tell us, that’s just 

no way to announce public policy. 

As small farmers we cannot afford lawyers to help us resist—we are virtually defenseless against—every non-meritorious lawsuit and Wage-Hour claim and every 

unfair, even unlawful, change in interpretation by a Department of Labor official 

who may not know how particular rules have been interpreted and applied—in 

many cases for decades. We therefore must turn to our elected representatives for 

help. 

The question that the Committee needs to ask and the decision it needs to make 

is whether or not we are going to have labor intense, production agriculture in 

America in the future. If we are to be able to do so, we need passage of H.R. 1792 

as a step in the right direction. If not, then the Committee needs to tell us so we 

small farmers can look for other work and hope that we will be able to afford and 

find safe, imported food. 

There is another important part of H.R. 1792 that I believe would contribute to 

good immigration policy. About 75% of the workers our Association’s members employ have been coming here for 10 years or more and returning home to Mexico 

every year. They are not part of an illegal workforce. These workers use the money 

they earn here to build homes in Mexico and to educate their children. 

Finally, even to achieve these high objectives, if these workers weren’t being treated fairly in connection with their work, no reasonable person could think they would 

be coming here 10 and more years. A better H–2A Program is important to all of 

these workers as well as to farmers like me, who need it to be able to continue farming, as well as to our communities and our nation. Thank you very much for your 

attention. 

111

ATTACHMENT

Mr. MAHONEY. Thank you very much, Mr. Atkinson. Mr. Roth. 

STATEMENT OF RICK ROTH, PRESIDENT AND PRINCIPAL 

OWNER, ROTH FARMS, INC.; VICE PRESIDENT AND MEMBER, 

BOARD OF DIRECTORS, FLORIDA FARM BUREAU; MEMBER, 

BOARD OF DIRECTORS, FLORIDA FRUIT AND VEGETABLE 

ASSOCIATION; MEMBER, BOARD OF DIRECTORS, SUGAR 

CANE GROWERS COOPERATIVE OF FLORIDA, BELLE GLADE, 

FL 

Mr. ROTH. Yes, sir. Good afternoon. My name is Rick Roth. I am 

a third-generation farmer from Belle Glade, Florida. My father 

moved from Cleveland, Ohio in 1949. I farm the Everglades agricultural area, which is 800 square miles of some of the richest organic soils in the United States south of Lake Okeechobee. 

This region of Florida is first in the production of sugar, sweet 

corn, and radishes. Our family, as I mentioned before, owns over 


11030022
112

4,000 acres, leases another 1,000 acres, and we grow lettuce and 

leafy vegetables, radishes, sugar cane, sod, sweet corn, green 

beans, field-grown palm trees, and rice. We employ 55 people full 

time, and plus we have another 220 seasonally. 

I serve on many boards, but I just really appreciate the opportunity to be here today. And I have enjoyed listening to some of the 

comments, but I would also like to explain why we must pass some 

meaningful immigration reform legislation immediately. And I ask 

you to please share this information that I am going to give you 

with your colleagues on both sides of the aisle so that we can get 

this done. 

We do live in perilous times. We are at war with terrorism, and 

we must prevent illegal immigration into this country. But just as 

important, we must also simultaneously give employers like me the 

ability to use legal, foreign workers. 

Why? Because domestic food protection is the other national security issue. Fruits and vegetables and other labor intensive crops 

make up over 50 percent of our agricultural production today. Foreign-born workers will plant, cultivate, and harvest the crops that 

make up most of our food supply. 

So will they do it here using our food safety guidelines; or will 

they be in another country? So do you want to import labor to fill 

the jobs needed, or do you want to import just more food? We already import over 50 percent. 

I live in Florida. When you say Florida, most visitors think of 

Mickey Mouse, but if you want to see real-world marvels, you need 

to come to Belle Glade. You will see hi-tech agriculture that produces crops year round using fewer new nutrients, water, and 

chemicals per unit of production than any other place in the United 

States. And I will personally give you the farm tour, and my opening statement will be, ‘‘Welcome to paradise.’’

One of the keys to the success of farming in the EAA is our ability to farm year round and to maximize production through crop 

rotation. Without an adequate legal labor force, we jeopardize that 

vegetable industry, which produces on 25,000 acres of sweet corn, 

10,000 acres of green beans, 7,000 acres of lettuce, and 5,000 acres 

of radishes with an annual average net value of $150 million a 

year. 

Our family farm is one of 50 members of Sugar Cane Growers 

Cooperative, one of the most successful co-ops in the United States. 

And for the first 30 years of our 45 year existence, we relied primarily on H–2A workers to harvest our sugar cane. Now, all the 

burdensome regulations of the H–2A Program, including farm 

worker housing and higher labor costs make this program a matter 

of last resort. 

The most onerous part was the farm worker housing. Now, due 

to the current situation, capital costs, county zone and permitting 

requirements, and negative public opinion, it will take many years 

for employers to move to H–2A for their labor needs. So to use this 

program, we must have this meaningful reform, but it is clearly not 

enough. 

We must provide a means for the current, experienced, agricultural workers to earn legal status, subject to conditions that will 

require them to work in agriculture. 

113

Now, when we talk about jobs in Florida, we talk about the 

three-legged stool: tourism, agriculture, and construction. Our economy in Florida is already in a recession due to the doubling of 

prices of houses, and I just cannot imagine what the degree of devastation to the economy will be in Florida, but I can assure you 

that you can send the U.S. economy into a depression if we deny 

employers access to a legal workforce. 

Please remember that agriculture is not the largest user of seasonal labor. We are just the most visible. 

As I complete my statement, I would like to change the focus towards you. In the past, legislation with H–2A reform and earn adjustment of status provisions have enjoyed broad bipartisan support. Today this issue is very emotional and controversial. 

Thank God that our founding fathers did not create a true democracy but instead a representative form of government. So it is 

your duty to ignore all the hype and emotion, sift through all the 

opposing ideas and options, and come up with a solution that will 

move this country forward. 

In closing, I say this. I play doubles tennis. The winning strategy 

there also applies here. Down the middle, solve the riddle. I want 

to thank you for this opportunity, and I look forward to answering 

any questions. Thank you. 

[The prepared statement of Mr. Roth follows:]

PREPARED STATEMENT OF RICK ROTH, PRESIDENT AND PRINCIPAL OWNER, ROTH

FARMS, INC.; VICE PRESIDENT AND MEMBER, BOARD OF DIRECTORS, FLORIDA FARM

BUREAU; MEMBER, BOARD OF DIRECTORS, FLORIDA FRUIT AND VEGETABLE

ASSOCIATION; MEMBER, BOARD OF DIRECTORS, SUGAR CANE GROWERS

COOPERATIVE OF FLORIDA, BELLE GLADE, FL 

Good morning. My name is Rick Roth. I am a third generation farmer from Belle 

Glade, Florida. I have been the President and Principal Owner of Roth Farms, Inc. 

since 1986. I have the most diversified farming operation in the Everglades Agricultural Area, 800 square miles of rich organic soils south of Lake Okeechobee. This 

region of south Florida is first in the production of sugar, sweet corn, and radishes 

in the United States. Our family owns over 4,000 acres, and leases another 1000 

acres. We grow lettuce and leafy vegetables, radishes, sugar cane, sod, sweet corn, 

green beans, field grown palm trees, and rice. We employ 55 people full-time, plus 

220 seasonally. 

I currently serve on the Board of Directors of the Florida Farm Bureau (10 years), 

the Florida Fruit and Vegetable Association (21 years), and Sugar Cane Growers 

Cooperative of Florida (13 years). I am the Vice President of Florida Farm Bureau, 

and this is my 7th year of service. 

I appreciate the opportunity to explain why we must pass immigration reform legislation immediately and ask that you share the information that you learn at this 

hearing with your colleagues on both sides of the aisle . . . We live in perilous 

times. We are at war against terrorism. We must prevent unwanted illegal migration into our country. But, just as important, we must simultaneously give employers like me the ability to use legal foreign workers. Why? Because domestic food production is the other national security issue. 

Fruits and vegetables and other labor-intensive crops make up 50% of our agricultural production today. Foreign born workers will plant, cultivate, and harvest the 

crops that make up most of our food supply. Will they do it here, using our food 

safety guidelines, or in another country? Do we want to import labor to fill unwanted farm labor jobs, or do we import more of our food supply. We already import 

over 50%. 

I live in Florida. When you say Florida, most visitors think Mickey. If you want 

to see real world marvels, come to Belle Glade. You will see high tech agriculture 

that produces crops year-round, using fewer nutrients, water, and chemicals per 

unit of production than anywhere in the United States. I will personally give you 

the tour, and my opening statement will be, ‘‘Welcome to PARADISE’’. 

114

One of our keys to success in the EAA is our ability to maximize production with 

fewer chemicals through crop rotation. Without an adequate legal labor force, we 

jeopardize our vegetable industry, which produces approximately 25,000 acres of 

sweet corn, 10,000 acres of green beans, 7,000 acres of lettuce, and 5,000 acres of 

radishes per year with an annual value of $150 million. 

Our family farm is one of 50 members who own one of the most successful cooperatives in this country, Sugar Cane Growers Cooperative of Florida. For the first 

30 years of our 45 year existence, we relied primarily on H–2A workers to harvest 

sugar cane. All the burdensome regulations of the H–2A program, including farmworker housing, and higher labor costs make this program a matter of last resort. 

The most onerous part of H–2A is farm-worker housing. Due to capital costs, county 

zoning and permitting, and negative public opinion, it will take many years for employers to move to H–2A for their labor needs. To use this program, we must have 

meaningful reform. But H–2A alone is clearly not enough. We must provide a means 

for the current experienced agricultural workforce to earn legal status subject to 

conditions including a future agricultural work requirement. 

Such a proposal is essential to solve both the short and long-term agricultural 

labor crisis. We need the earned status provisions as a bridge to greatly expanded 

use of the H–2A program. It will provide the much needed time to build the housing 

required of users of the H–2A program and will allow our government to expand its 

consular offices in foreign countries so that they can process foreign workers for admission in a timely manner. Currently, with less than 2% of the agricultural workforce entering under the H–2A program, growers are experiencing harmful delays in 

getting their workers in a timely manner to harvest highly perishable crops.

When we talk about jobs in Florida, we talk about the three-legged stool: Tourism, 

agriculture, and construction. Our economy in Florida is in a recession due to the 

dramatic increase in housing prices. New home sales are at a standstill, and the 

forecast for over a year is it will take 2 years to work our way out of the over-supply. 

I feel the impact. Our wholesale sod sales are down 50% from a year ago. I can not 

imagine the degree of devastation that will occur in Florida, but I can assure you 

we can send the U.S. economy into a depression if you deny employers access to 

a legal workforce. Agriculture is not the largest user of seasonal labor; we are just 

the most visible. 

As I complete my statement I would like to change the focus of my remarks towards you. In the past, legislation with H–2A reform and earned adjustment of status provisions has enjoyed broad bipartisan support. Today, this issue is very emotional and controversial. Thank God that our founding fathers did not create a true 

democracy, but instead a representative form of government. It is your duty to ignore all the hype and emotion, sift through all the opposing ideas and options, and 

come up with a solution that will move this country forward. 

I play doubles tennis. The winning strategy there also applies here. ‘‘Down the middle, solve the riddle’’. Thank you for giving me this opportunity and I would be 

happy to answer questions later, if time permits.

Mr. MAHONEY. All right. Thank you, Mr. Roth. And as all the 

Members of Congress rush to the airport, I know that there are 

people that are here that have flights, but I do want to ask a question or two, and we can conclude this. 

You know at the beginning, we were talking about the fact that 

the Department of Homeland Security and the Social Security Administration are changing their policy with regards to these NoMatch letters. And I would like to hear from the growers really 

quickly in a couple of sentences what the impact would be of this 

policy change to your businesses. We will start with Mr. Carnes. 

Mr. CARNES. Right now, the estimates are out that Texas has 

over 3⁄4 of a million employees that are going to be affected by NoMatch. The fact of the matter is for us as agricultural people, we 

have key experienced, trained personnel that we don’t know. The 

fact is we really don’t know what their status is. We——

Mr. MAHONEY. But the question I am asking you is that if they 

change this policy, does it impact your ability to get access to labor 

right away, or is this something that is going to——

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Mr. CARNES. I think it will affect our existing labor force right 

away. Yes, I think we will lose a lot of key personnel that we have 

no idea that the documents they have may not be entirely valid. 

Mr. MAHONEY. Mr. Smoak? 

Mr. SMOAK. The impact will be significant, and it will be immediate. 

Mr. MAHONEY. Well, that was brief. He must have a flight. Mr. 

Yates. 

Mr. YATES. I am an H–2A user, so there would be no——

Mr. MAHONEY. No issue for you? Mr. Mouw? 

Mr. MOUW. Already with the letter that we get from Social Security saying they don’t match already does things with the employees—I say you can’t work here unless it is legal. If it matches—

if it doesn’t match, I can’t have you. So I already do that. 

Mr. MAHONEY. Yes, and Mr. Atkinson. 

Mr. ATKINSON. There would be no impact. We use H–2A. 

Mr. MAHONEY. H–2A, right. And, Mr. Roth? 

Mr. ROTH. I have a couple of comments. The first one is——

Mr. MAHONEY. You get one comment. 

Mr. ROTH. One comment, okay. The impact will be great. I do 

have very skilled workers in the lettuce business. 

Mr. MAHONEY. But would it be immediate? 

Mr. ROTH. So it would be immediate, but the thing you need to 

think about is that these employees will probably shift jobs, and it 

is very highly qualified. I can give you a perfect example back in 

2005. 

Mr. MAHONEY. That is okay. We don’t have——

Mr. ROTH. You don’t have time, okay. 

Mr. MAHONEY. We don’t have time. I am trying to respect their 

time. I have another question which is: we are looking at a couple 

of options. We have talked about two options today, the two things 

that are presented. One is the AgJOBS. Another is the H–2A Program of which we now know there is 2 percent of the labor force 

in agriculture participates in that program. 

And yet there is yet a potential third one, which is comprehensive immigration reform that did not pass out of the Senate and 

didn’t even get to the House, which would be a national comprehensive approach to having these people identify themselves 

with a system where they could be here with a legal status in this 

country. 

If you take a look at where this legislation was going, they were 

talking about having a system where there would be the Department of Homeland Security responsibility to identify these workers 

and then have some form of biometric card that would be presented 

to you all for hiring. 

So my question for each of you is of the three choices in front 

of you, national comprehensive program, AgJOBS, or H–2A, what 

works best for your operations? Mr. Carnes? 

Mr. CARNES. I think we are here today to solely focus on agriculture, and the one reason that agriculture is still in this fight is 

because we have been forthright, and we have worked this issue 

hard. And we can’t afford to quit. Right now, the best thing out 

there would be AgJOBS. I am not saying it is perfect, but we need 

a comprehensive agricultural solution. 

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Mr. MAHONEY. Okay, thank you. 

Mr. CARNES. We have to keep the workers that we have. We 

have to have a future path. I am sorry. I could go on. 

Mr. MAHONEY. We have heard the arguments. Mr. Smoak? 

Mr. SMOAK. I believe we need the long-term fix to get us legal 

workers. That is what we need. 

Mr. MAHONEY. Mr. Yates. 

Mr. YATES. H–2A reform would be the best long-term fix. 

Mr. MAHONEY. Okay, Mr. Mouw? 

Mr. MOUW. I think that H–2A wouldn’t work at all. AgJOBS 

would be a possibility, but the long-term solution is complete immigration reform. 

Mr. MAHONEY. Mr. Atkinson? 

Mr. ATKINSON. H–2A reform. 

Mr. MAHONEY. And Mr. Roth? 

Mr. ROTH. We need the AgJOBS because we need to be able to 

transition. 

Mr. MAHONEY. Okay, do any of the Members have any questions? 

The CHAIRMAN. If I could. Mr. Mouw, I was surprised to read 

that you had been approached to move your dairy to China. 

What——

Mr. MOUW. I happen to live right on the edge of LA, and there 

are people that the first dairy they see when they come to LA to 

look at the dairies are mine, and they often stop. I have had people 

from China, New Zealand, many other countries, just stop. 

There just happened to be some people who stopped, an operator 

from Beijing and two mainland Chinese nationals, one who works 

in Chicago, one who works in Beijing, came by and spent half a day 

with me asking questions. They just stopped in and started talking, 

asking questions and said they really need producer know-how expertise out there. And they offered to move me out there because 

they are really looking to expand their dairy industry out there and 

not having very much success very quickly. But they are going to 

do it anyway. 

The CHAIRMAN. All right, thank you. 

Mr. MAHONEY. Does anybody else have any questions? Let me 

just conclude by just taking the privilege of being the chair of saying that one of the things I love about agriculture is that the people 

that represent the industry are the very best that America has to 

offer. Hardworking, committed, law-abiding. And I really commend 

all of you for working very hard to try to deal with an impossible 

situation. 

My experience with agriculture amounts to about 40 cows, and 

I can tell you that talking to my neighbors what an impossible task 

you find yourselves having to deal with all the time. And I want 

you to know that you are probably the only industry that I could 

think of in America that would have been so willing to deal with 

this impossible situation; with an approach to immigration that 

has put you in a position of having to make tough choices between 

doing the right things, doing the things that are for the law, and 

trying to take care of your families. 

And I would just hope that, as an industry, you stand up for your 

rights, and you let people know that agriculture is important beVerDate 0ct 09 2002 10:21 May 05, 2009 Jkt 041481 PO 00000 Frm 00120 Fmt 6633 Sfmt 6601 I:\DOCS\110-30\48999.TXT SOLEM PsN: REBEKA
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cause the message here in Congress needs to get communicated as 

well. 

So I want to thank everybody for being here today. It was a long 

day, but your testimony is very critical, and it is going to be an important part of the debate as we move forward with what to do in 

this country with immigration. 

With that, I am going to declare this hearing adjourned. Thank 

you very much for your time. 

[Whereupon, at 3:46 p.m., the Committee was adjourned.] 

[Material submitted for inclusion in the record follows:]

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FARM LABOR CRISIS: A NEW YORK STATE PERSPECTIVE

New York is an agriculture state. Farms encompassed 25 percent of the state’s landscape and generated $3.6 billion for our economy in 2006. Currently, New York 

State has 7.5 million acres of farmland with 35,000 farms producing a variety of 

products. New York’s leading commodities include milk, apples, grapes, fresh vegetables, equine, and horticulture. 

New York’s strong and diverse agricultural industry is dependent on a 

reliable workforce. According to the National Agricultural Statistics Service, in 

2006 there were approximately 32,500 agricultural laborers hired in the Northeast. 

New York State employs a vast number of these workers. 

It is estimated that a significant and growing percentage of the workers who come 

to our farms are illegal and utilizing fraudulent documents to secure employment. 

Not only is it hard to distinguish a fraudulent document from a legitimate document 

but an employer who takes action against an individual based on an assumption of 

false documents or an illegal status may, in fact, violate the law and can face 

charges of discrimination. 

This situation puts farm businesses at an increased risk. A raid by Immigration 

and Customs Enforcement can cause financial devastation in an instant. If 

a labor force is not in place the entire harvest can be lost and animals’ health and 

welfare compromised. 

When conducting immigration enforcement on a farm, agents may not be aware 

of sensitive issues like bio-security and animal health. ICE agents may unknowingly 

contaminate or spread disease between farms when bio-security protocols are not 

followed. Also, if an animal is not regularly milked on the established schedule it 

can lead to serious animal health consequences including disease and severe animal 

discomfort. For example, a dairy farm located in western New York had a worker 

picked up while he was milking cows during an early morning shift. Several hours 

later the farmer discovered the cows, still in the parlor, with the milking equipment 

still running and the cows in discomfort. 

There simply must be procedures put into place that provides for the notification of a farm operator if his or her workers are detained by ICE and 

animals are left unattended or workers disappear from the field.

Farm raids have a human toll as well. Farm employers face possible fines and 

jail time if they are found to have knowingly hired illegal workers. Farm workers 

are also affected. Due to the fear of enforcement actions farm workers are 

driven into the shadows and they are afraid to access health clinics, child 

care, and other critical services. Some farm workers refuse to live in worker 

housing and choose instead to sleep in cars hidden in farm fields because of fear. 

When farm workers are picked up their children are sometimes left behind at child care centers. The ever present threat of parents being separated from their children places tremendous stress on these families. Parents leave their children in the mornings to go work in the fields and packing 

houses and worry every minute if they will be back together at the end of the day. 

Such elevated stress levels adversely impact children’s overall health and development. Parents are avoiding parenting and ESL classes—the very things that can 

strengthen their families and communities. Children and families, documented and 

undocumented are suffering. 

Farmers are also put at risk by disgruntled neighbors. Due to the nature of a 

farm businesses and encroaching urban sprawl, neighbors, who do not always understand sound agricultural practices, may become disgruntled by the sights, 

sounds, and smells of a farm operation. ICE will conduct raids on farms if they are 

given an anonymous tip as this provides reasonable suspicion that illegal workers 

may be employed on such farm. 

This is no way for a farmer to run a business and it is simply no way for 

a farm worker to live.

Because of this risk and the fact that many of our migrant farm workers are unwilling to return to New York because of increased immigration enforcement within 

our state, many employers are turning to the H–2A Agricultural Seasonal Worker 

Program. Data collected from the U.S. and N.Y. Departments of Labor shows 

that more and more farmers in New York are utilizing H–2A. In 2004 there 

were only 120 employers certified in the program who requested about 2,200 H–2A 

workers, by 2006 that number had increased to over 200 employers requesting over 

3,100 workers. That number is expected to increase once again this year. Over 275 

employers have requested almost 4,000 workers and we are just now entering our 

fall harvest season. This trend is likely to continue. 

The H–2A program is available to our seasonal growers but does not address the labor needs of our year round employers, e.g., dairy farms, vineVerDate 0ct 09 2002 10:21 May 05, 2009 Jkt 041481 PO 00000 Frm 00123 Fmt 6633 Sfmt 6621 I:\DOCS\110-30\48999.TXT SOLEM PsN: REBEKA
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yards, fisheries, and equine operations. Of even more concern is that fact that 

many of our members who do utilize H–2A have experienced extreme delays in the 

processing of their applications and in some instances gross negligence in the handling of their applications. One particular apple grower’s application was lost twice 

and the farmer is concerned that his workers will not arrive in time for harvest. 

Many other growers have shared similar stories of workers arriving up to a month 

late. 

The H–2A program needs major reforms in order to meet the needs of New York’s 

agricultural industry. Without H–2A reforms and/or a comprehensive immigration reform bill or single sector agricultural labor bill the future of 

farming in New York is insecure.

A conservative estimate from the Farm Credit Associations of NY suggests that 

New York State will lose in excess of 900 farms, $195 million, and 200,000 acres 

of agricultural production over the next 2 years if current immigration policy is not 

changed. 

Farmers desire a safe and secure homeland, but are also an integral part 

of the security of our nation’s food supply.

All of the above examples’ portray the urgency for immigration reform. This problem will only grow, and a solution must be found that recognizes the reality of the 

future workforce today. We need to set the politics aside and seek a bill that 

is bipartisan and solves the immigration problem for agriculture immediately.

The strength of our family farms depends on immigration reform. Our farm workers deserve a chance at a better way of living and working. And the future of our 

safe, healthy, and local food supply depends upon a reliable and legal workforce.

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PREPARED STATEMENT OF AMBER S. BRADY, GENERAL COUNSEL/DIRECTOR OF

AGRICULTURAL POLICY, SOUTH DAKOTA DEPARTMENT OF AGRICULTURE, PIERRE, SD 

Dear Committee Members:

Enclosed are letters that our office has received from South Dakota agricultural 

producers and agricultural businesses, regarding the labor needs of American agriculture. Please consider these letters as written testimony for today’s public hearing 

at 11 a.m. in the Longworth House Office Building, to review the labor needs of 

American agriculture. 

Agriculture needs a consistent, stable workforce. Thank you for your attention to 

this issue that plagues American agriculture. Please feel free to contact our office 

for any further information on this issue. 

Regards,

AMBER S. BRADY,

General Counsel/Director of Agricultural Policy,

South Dakota Department of Agriculture, Pierre, SD 

ATTACHED LETTERS

Dear Committee Members:

I am writing to tell you how important a dependable labor force is to my agricultural business. I own a large dairy-calf raising business that was started about 4 

years ago. My farm receives about 30 newborn calves per day. These calves must 

be bottle fed their first weeks. Currently, I employ about 15 workers in two shifts 

per day. This is very physical hands-on work, and it goes on 16 hours per day, 365 

days of the year. 

My community suffers from the lack of a workforce that is young and able to work 

in the livestock industry. There are few residents that are under 40 years of age. 

Our school had to consolidate 4 years ago due to lack of children. The majority of 

the people in my community are retired senior citizens. 

Perhaps you think I don’t pay well, or I’ve never advertised for help. That’s not 

true. I’ve advertised with job service and word of mouth, to no avail. My employees 

earn $30,000 or more a year. The pay scale is not what keeps them away. They 

want banker’s hours and no weekends, and little physical outdoor work. But baby 

calves need to eat twice a day on Saturday & Sunday and Christmas Day, as well 

as the weekdays. 

Most of my workforce hold work visas and come from another country. My employees that come from other countries enjoy working with livestock. They take 

pride in doing their jobs well. I am proud to call anyone of them a friend and neighbor. If it were not for these people who work diligently and responsibly, I would not 

be in business. Yet the current H–2A visa process limits an ag employee to only 10 

months employment in the United States. Then they must leave. It was developed 

for the fruit and vegetable growers. Not all agriculture involves growing and harvesting crops for a few months a year. Hogs, dairy, beef feedlots and livestock processing all have year-round labor needs. Many of these jobs take training and experience they gain with several months of work. I find I spend 1⁄2 of that time training 

them, only to have their visa expire and they need to leave. Then, I start the process 

over. 

I have the opportunity to double the size of my calf raising business in the next 

few months. That means double the labor I will need to hire. My biggest obstacle 

is not the permitting process through the local and state agencies for a large livestock operation. My biggest nightmare is wondering if Congress will do something 

to allow willing, dedicated foreign workers to fill the jobs on my farm that people 

from my community can’t or won’t take. I need to be able to access these foreign 

workers in a timely manner. I need to be able to train these good people, and then 

keep them for more than 10 months. Turnover costs any employer money. 

I urge you to support the AgJOBS bill or similar legislation that addresses the 

foreign labor force that keeps this country humming. Support legislation that lets 

America produce and process its own food. Someone needs to raise livestock in 

America. Without the legal & workable means to utilize a foreign labor force for all 

types of agriculture, (when American citizens can’t or won’t do the work required 

to grow, care for, and process our food) we will be dependant on other countries to 

feed us and millions of farmers will be out of business in the United States. 

Sincerely,

JAY HILL,

Veblen, SD. 

137

Dear Committee Members:

I am a grain and livestock farmer with a custom harvest business. My grandfather started the custom harvest business about 55 years ago. My son now takes 

a crew to run the wheat harvest from Oklahoma to Canada. For four generations, 

we have helped feed America. We also grow corn, soybeans and wheat on our own 

land. 

For the past 5 years, we have been unable to find enough seasonal farm labor 

to keep our farm business going. We now have to depend on H–2A visa labor, and 

most of them come from South Africa. Some of our competitors are hiring H–2A 

labor from Europe. Not many years ago, our labor force consisted of high school and 

college age young people. They are no longer interested in the physical outdoors jobs 

we need to fill. I’m not talking about pitching bundles into the threshing machine 

on 110 degree days under the blazing sun. We teach our employees to operate combines, tractors, and trucks with state-of-the-art computer assisted, air conditioned, 

GPS equipped, air-ride seats—in machines that cost up to $250,000. I’m just asking 

for employees whom we will teach everything that they need to know on state-ofthe-art machinery. I can’t find any American workers to fill these positions. 

The H–2A visa process was a workable solution for us until this spring. I requested six visas to be approved, and at the last minute, the consulate in their home 

country failed to approve 1⁄3 of the positions. My son had to leave for Oklahoma 

without a full crew. 

I urge you to support the AgJOBS bill or similar legislation that addresses the 

foreign labor force that keeps this country humming. Support legislation that lets 

America produce and process its own food. Without the legal & workable means to 

utilize a foreign labor force we will be dependant on other countries to feed us and 

millions of farmers will be out of business in the United States. Agriculture needs 

this. 

Sincerely,

DENNY PHERSON,

Veblen, SD. 

Dear Committee Members:

The Midwest Dairy Institute is a 2,000 cow dairy farm in eastern South Dakota 

owned by the Milbank Community Foundation. We are charged with two missions: 

one is to operate this large commercial dairy farm, and the other is to provide educational services to dairy producers and dairy workers. 

Both as an employer and as educators, it has become obvious that the shortage 

of legal farm labor has become a crisis that threatens to destroy our industry. If 

we cannot find a legal source of quality employees to work on our farms, this 

modem and efficient dairy industry will cease to exist as we know it today. 

We offer good pay and benefits but U.S. workers are rarely, if ever, interested in 

working on a dairy farm. Our educational programs designed to train workers for 

dairy employment are finding no one interested in a future as a dairy employee. 

Every dairy producer I talk to tells me the same thing. There are few if any quality 

employees available from the U.S. workforce for employment on dairy farms. 

The only way we can staff our farms and keep milking cows is to hire foreign 

workers. We hire these workers taking their documentation at face value, but we 

know that when ICE raids a dairy farm, many of the workers assumed to be legal 

are deported. Every large dairy in the U.S. lives in fear of ICE coming in and removing enough of their workers to put them out of business. 

The political bickering and turmoil over comprehensive immigration reform is not 

even relative to the needs of the dairy industry. I, as a dairy producer, have no 

agenda for comprehensive immigration reform. I need to see an obsolete and unworkable agricultural guest worker program reformed to fit the needs of modern 

dairy farming. An H–2A temporary worker program does not work for an agricultural industry that harvests milk 24/7/365. 

Failure of the U.S. Congress to do something about this critical labor shortage 

coupled with increased ICE enforcement will lead to the destruction of the modern 

dairy industry. The economic disaster that will result from that will ripple through 

our agricultural industries all the way to the grocery store.

HOWARD MANLOVE,

Dairy Farm Complex Manager,

Midwest Dairy Institute. 

138

Dear Committee Members:

I’m a dairyman, hoping to invest in a large dairy in South Dakota. At the moment, we hold both a county and state permit to build a 2,100 cow dairy near Bruce, 

SD, in Brookings County. 

According to research from the University of Minnesota, (see web link below), the 

economic ripple effect of a dairy cow to the local economy is $13,737 per cow per 

year. Therefore a dairy of this size should create an economic ripple effect of 

$28,847,700 per year. 

My concern is that with unemployment so low in South Dakota and no reform 

in immigration law, I won’t be able to get sufficient qualified staff for my dairy. This 

is especially true for veterinary staff. Last year, only 80 large animal vets graduated 

in the U.S. as a whole. If not enough vets are coming out of U.S. colleges we need 

to get them from somewhere else.

http://www.ansci.umn.edu/dairy/dinews/12-1-economiclengines.htm

Yours sincerely,

MICHAEL. 

Dear Committee Members:

We are dairy farmers who moved to Lake Norden, SD in February 2006 from Co. 

Fermanagh, Northern Ireland. South Dakota has been recruiting dairy farmers from 

the United Kingdom, Ireland & Europe for a couple of years now and we decided 

to emigrate here in 2005 but took 6 months to complete U.S. Immigration through 

London (a much shorter process than any I have heard about here in the USA). We 

have invested millions of dollars in a brand new 1,400 cow dairy here in Hamlin 

County and have been milking since December 2006. 

I am writing to urge you to take action on an issue I am very concerned about 

and that is essential to the smooth operation of my farm—immigrant labor. We currently employ 22 people, 15 of whom are Milkers and stall management operators. 

It is extremely difficult to find local workers willing to do the hard work required 

to operate a successful dairy farm. As a result, significant numbers of dairy farms 

of all sizes across this country rely on immigrant labor to help efficiently run their 

operations. I have tried to employ as many local people as possible but 8 hour milking shifts are not popular and because we milk three times a day we need three 

shifts of four staff to cover a 24/7 operation. Currently all our Milkers are Hispanics 

with Permanent Resident cards and Social Security Numbers. 

The announcement by the Department of Homeland Security regarding increased 

enforcement actions is increasing the level of frustration and concern that I and my 

fellow dairy farmers feel at the government’s inability to tackle this important issue 

in a reasonable way. Many long-standing employees that dairy farmers have employed in good faith may well have to be let go in light of these efforts. When taking 

on new staff they must have two forms of identification and we keep a copy of these 

forms, however I do not feel that I have any special knowledge or skills that allow 

me to screen employee’s employment status. We are just so grateful to have people 

looking for work. We need a comprehensive solution to the challenge of immigration—not a one-sided attack focused solely on punitive enforcement policies. 

That is why I strongly urge you to actively support the passage of the AgJOBS 

legislation. AgJOBS provides for a badly-needed temporary worker program for agriculture and an orderly transition that encourages experienced farm workers to remain working in agriculture for a period of years. Equally important for dairy farmers, such as me, it also includes a provision addressing the unique needs of dairy 

farmers for a stable workforce. 

Please work with your fellow Members of Congress to enact AgJOBS without further delay. This carefully crafted compromise approach has been out there for some 

time now—it’s well past time for Congress to put it into law! 

Sincerely,

RODNEY & DOROTHY ELLIOTT, 

Managing Partners,

Drumgoon Dairy LP. 

Dear Committee Members:

We operate a 400 cow dairy and a crop farm in MN. On our dairy, we milk three 

times a day. We have a Spanish labor force. If we did not have them, there would 

139

be no dairy. Our Spanish laborers are dedicated, hard-working people. They will 

work 7 days a week when needed. They do their job well and are on time. They 

like rewards just like everyone else. 

In our area of MN, Spanish laborers work for other local businesses, including 

turkey processing, vegetable canning, landscaping, building, or construction. All of 

these jobs are jobs that white people don’t want to do. 

Immigrant laborers, and their families, should be allowed to come to the U.S. to 

work. They invest a lot money back to local areas, as well. They like and purchase 

nice things, including homes, cars, & trucks. 

Sincerely,

GEORGE & CHARLENE DUBAN, Duban Dairy. 

Dear Committee Members:

My name is Amber, I am a resident of South Dakota, where agriculture has been 

my primary source of income for the better part of my life. During part of that time, 

I worked as an Assistant Herdsman for a 1,400 head dairy. At this dairy, I worked 

directly with both male and female immigrant workers who I found to be very pleasant and valuable employees. They worked harder than anyone else, they treated me 

with the utmost respect, and were always there to help me if I needed it. They were 

also great at working with me to break the language barrier and to develop an efficient workplace. 

Immigrant workers are a valuable asset to American agriculture and they should 

be treated like it. 

Thank you for your time and consideration,

AMBER. 

Dear Committee Members:

We represent the management company for five dairies in the I–29 corridor. The 

dairy industry is extremely labor intensive. We cannot milk cows by computers and 

robots. There are a variety of tasks and jobs to be done on a dairy, and all of them 

are performed 365 days a year. 

Someone has to harvest the feed, mix the feed, deliver the feed, attend the cows 

that are calving, tend to the newborn calves, watch over the very fresh cows, treat 

the sick, clean the pens and stalls, milk the cows, haul the cows to market, manage 

the workers, pay the bills, market the milk, and the list goes on. It takes approximately one person for every 100 cows. 

Our company manages about 10,000 dairy cows, 3,000 dairy calves, and 5,000 

dairy heifers. Those numbers require about 180 employees. While we have been able 

to hire employees for middle and upper management, we struggle with filling the 

technical positions (veterinarians & animal scientists) and of course, the people for 

the less technical, but very labor intensive positions. 

Whenever possible, we hire veterinarians through TN visas (NAFTA) and a few 

laborers through H–2A visas. TN visas are renewable annually for only 3 years, and 

H–2A visas are only for certain positions that are not year-round—only for 10 

months. 

Our rural area would struggle if we only milked 500 cows. There just are not the 

people that are interested in working with livestock no matter what wage is paid. 

We have assisted people with housing, moving, schools for their children, anything 

that will make our area more attractive. We have few local residents that are under 

40 years of age. Our schools have consolidated for lack of students, our churches 

have closed, main streets look like ghost towns. But in the communities where we 

manage dairies, the main streets are busy, the schools see an enrollment holding 

steady, and there is a feeling that maybe these little towns won’t die. Farm managers come with their families and relocate into these rural communities. 

Animal agriculture is a huge economic development engine. With a workable & 

fair foreign labor immigration bill that addresses year-round agriculture labor 

needs, we can continue to put people back into our local rural communities. If foreign labor and rural labor needs are not addressed ASAP, our food production and 

processing will move out of America, and we will soon import our food and lose millions of farmers. 

I urge you to support the AgJOBS bill or similar legislation that addresses the 

foreign labor force that keeps this country humming. Support legislation that lets 

America produce and process its own food. Without the legal & workable means to 

140

utilize a foreign labor force we will be dependant on other countries to feed us and 

millions of farmers will be out of business in the United States. Agriculture’s future 

depends on this.

PRAIRIE RIDGE MANAGEMENT COMPANY, VEBLEN, SD

RICK MILLNER

KAREN HORNSETH

LUCAS MAUCH

JAMIE REIN

BARB CLARK

KURT MEYER

MIKE STAVICK

MISSY REIN

DARLENE HANSON

RONNIE LEE

JILL MILLNER

———

Dear Committee Members:

Although I am not directly involved with the dairy industry, I understand that 

as production agriculturists, dairymen are tasked with running an operation that 

is an economic driver in rural America. They are also struggling to obtain a sufficient labor force and must turn to guest workers to keep the business running. 

As a member of the community, I see guest workers as an opportunity. True, they 

are able to save money and send it home to their families; but, these guest workers 

also buy gas, groceries, clothes, etc. from the communities in which they live. It is 

important to have this workforce available to help keep rural America running. 

Sincerely,

SAMANTHA QUINN, 

Quinn & Associates, 

Farm Bureau Financial Services, 

Watertown, SD. 

Dear Committee Members:

We are partners in several large dairy operations in northeastern South Dakota. 

The dairy industry is extremely labor intensive. 

There are a variety of tasks and jobs to be done on a dairy, and all of them are 

performed 365 days a year. Operating a dairy farm requires one person per 100 

cows. The work is quite physical. Someone has to harvest the feed, mix the feed, 

deliver the feed, attend the cows that are calving, tend to the newborn calves, watch 

over the very fresh cows, treat the sick, clean the pens and stalls, milk the cows, 

haul the cows to market, manage the workers, pay the bills, market the milk, and 

the list goes on. 

It is a daily struggle to fill the positions for these labor intensive positions. We 

have a few positions that can be filled with H–2A visas, but they are designed for 

seasonal farm labor only and do not come close to addressing the labor needs on 

a dairy farm. They only allow the employee to work for us for 10 months; then, they 

must return home. 

Our rural area would still struggle even if we only milked 500 cows. There just 

are not the people that are interested in working with livestock no matter what 

wage is paid. We have assisted people with housing, moving, schools for their children, anything that will make our area more attractive. We have few local residents 

that are under 40 years of age. Our schools have consolidated for lack of students, 

our churches have closed, main streets look like ghost towns. 

Animal agriculture is desperate to find employees. They are not here in rural 

America. Animal agriculture can be a huge economic development engine. Our 

worry is that if we cannot find labor for food production and food processing in this 

country, these industries will move out of America, and we will soon import our food 

and lose millions of farmers. 

We urge you to support the AgJOBS bill or similar legislation that addresses the 

foreign labor force that keeps this country humming. Support legislation that lets 

America produce and process its own food. Without the legal & workable means to 

utilize a foreign labor force, we will be dependent on other countries to feed us and 

millions of farmers will be out of business in the United States. Agriculture’s future 

depends on this. 

Sincerely,

MCC DAIRY, VEBLEN, SD & FIVE STAR DAIRY, MILNOR, ND

JORDEN HILL

WAYNE VIESSMAN

MICHAEL WYUM

RICK MILLNER

DUAYNE BALDWIN

DENNY PHERSON

141

———

Dear Committee Members:

We own a family-run dairy farm in south-central South Dakota. We currently 

milk 240 cows, and we raise all of our own replacement cows, making a total of 

around 500 head of livestock. We are in our late 30’s/early 40’s and have four kids—

ages 10, 12, 14, 16. We farm 640 acres and have our parents on the farm with us. 

Dad, at age 77, still puts in 10–12 hour days. 

We currently employ two full time people besides ourselves, and we employ our 

kids many hours each day. We have, in the past, employed high school students and 

a few farm wives to help cover milking shifts (a shift takes three people). However, 

due to the ‘‘rain, snow or shine’’ aspect of dairy farming, this labor structure was 

no longer working for us. 

We have seen a significant decline in the quality of labor over the years. Everyone 

wants to receive as much pay as possible for the least amount of work, and they 

don’t want to be responsible for filling out a shift if it interferes with something 

more important—like a basketball game that they just want to see. 

Therefore, we have made a change to other labor sources. We currently have two 

Mexican workers. They are hard working, responsible, pay taxes, and are always 

looking for more work. They have a large family network, so if they need to take 

time off, or want to leave the position, there is always someone waiting to fill their 

shoes. The language barrier has been a problem, but we are working around it. We 

pay these laborers $10/hour (The starting rate is $8/hour in our local community 

businesses). We also provide housing, meat and milk. 

As far as we know, our help is in the country legally. However, after the ICE 

raids at a dairy in North Dakota, all dairy employers of any immigrant help are 

frightened. If we are to be responsible for the legality of the papers of our employees, then the government needs to provide training for employers to recognize proper legal documentation, and we need to have a work program that does not contradict itself. The current plan of ‘‘No-Match’’ letters is not adequate if that is the 

only way that we can find out if our employees are legal. And, as the letter states, 

we cannot fire them if they are legal, due to discrimination laws. Most importantly, 

if we find out our employees are not legal, how can we as employers go about getting valuable employees legalized?! The current system is BROKEN and must be 

fixed! 

We feel it is IMPERATIVE for some sort of AgJOBS provisions to allow for yearround farm labor. The seasonal worker program is not adequate to meet the needs 

of a 365 day per year profession. 

Thank you for your time and your attention to this matter.

JOEL & SUSAN SYBESMA, Dutch Made Dairy, 

Platte, SD. 

Dear Committee Members:

We are a family dairy in South Dakota, and we depend on people from other countries to help us produce our milk. Our herd consists of 1,200 milking cows. We have 

16 full-time employees of which 12 are immigrants. They are hardworking, honest, 

and have restored our faith in knowing people that still want to work. In order to 

save our food processing industry, Congress must act quickly to ease the tightening 

labor crunch we face in American agriculture. Hiring immigrants is the only way 

of ensuring our food is produced on a daily basis. Our local labor force has been 

tried, but fails to have the work ethic and honesty that immigrants give to our industry. If immigrants are not given labor reform, food and food-related industries 

will be devastated. 

A high percentage of immigrants in this country do not want citizenship. They 

want to be able to work legally, have a better life for themselves and families, and 

then return to their home, after earning enough income to better themselves. 

As dairymen, we are faced with a year-round labor problem in rural South Dakota. The same is true for others involved in South Dakota’s pork, beef, and meat 

processing industries. South Dakota also has a growing number of seasonal crop 

producers who need a part-time labor force. But, a worker program that only attacks the seasonal worker problem is not the answer. We need a year-round labor 

force. And, we need an immigration reform program that will assure us our workers 

are legal. The Department of Agriculture in each state could monitor the immigrant 

workers and issue an agricultural ‘‘work permit.’’ Congress needs to realize the 

amount of labor needed in our industries and what it takes to produce our food supVerDate 0ct 09 2002 10:21 May 05, 2009 Jkt 041481 PO 00000 Frm 00145 Fmt 6633 Sfmt 6621 I:\DOCS\110-30\48999.TXT SOLEM PsN: REBEKA
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ply. We need to identify immigrant workers, give them a ‘‘work permit’’ to work in 

one state, giving our Labor Department the ability to track them and their employer, and give them a life here that we take for granted. 

This issue needs to be resolved soon and needs to be addressed in a practical

means of keeping our food supply secure. 

Dear Committee Members:

We operate a dairy in western South Dakota, and employ eight people full-time. 

The dairy runs 24 hours a day, so we need labor all day long. We do shift work 

labor, and workers rotate between working days and nights each month. 

Our largest problem is that when we try to find help, we can not get anyone to 

apply for the position. We have put ads in the local newspaper, and the jobs are 

listed with a job service, and still, we do not get anyone to apply. Generally, when 

we do get someone to apply, they are unreliable, do not have good work ethics, and 

have an undesirable background. Due to this, we have had to rely upon immigrant 

labor.

DAN AND WANDA DUNN,

Dunn Dairy. 

PREPARED STATEMENT OF LUAWANNA HALLSTROM, CRAIG J. REGELBRUGGE, AND

JOHN YOUNG, ACIR CO-CHAIRS, AGRICULTURE COALITION FOR IMMIGRATION REFORM

Chairman Peterson, Ranking Member Goodlatte, and Members of the Committee:

The Agriculture Coalition for Immigration Reform (ACIR) appreciates the opportunity to submit a written statement to the U.S. House of Representatives, Committee on Agriculture. We appreciate the Committee’s understanding that the agricultural labor crisis in America directly threatens the very survival, as well as the 

stability and growth, of the fruit and vegetable, dairy, livestock, nursery, greenhouse and Christmas tree industries. 

ACIR is comprised of several hundred national, regional, and state grower and 

producer organizations representing all facets of labor-intensive agriculture in 

America. It was formed in 2001 to push for lasting immigration reforms needed to 

ensure a stable and legal agricultural labor force. 

America Will Be More Secure With the Passage of Immigration Reform 

Every American supports secure and well-managed borders. Yet, every day the 

Border Patrol spends enormous resources attempting to apprehend economic migrants who only seek to cling to the bottom rung of our nation’s economic ladder. 

And America needs them. Many find work in agriculture milking cows or picking 

peaches, since Americans are not raising their children to be farm laborers. Providing better legal channels for farm workers to enter, work, and return home when 

the season is over will free up Homeland Security resources to focus on true threats 

to America’s well-being. 

Bipartisan legislation known as AgJOBS (H.R. 371) will facilitate the stabilization 

and proper documentation of the trained and trusted labor force here at work on 

America’s farms and ranches. It will also facilitate an orderly transition to substantially wider use of an improved agricultural worker program, by reforming the decades-old and dysfunctional H–2A program, as capacity is built on the farm and at 

U.S. consulates abroad to enable wider use of the program. Presently, H–2A workers 

fill roughly 1.9% of the job opportunities in American agriculture. It will take at 

least several years to build the capacity needed for more reliance on H–2A. 

Immigrant farmworkers support American jobs. Agricultural economists estimate 

that every farm worker job supports three to four jobs in the surrounding economy. 

By and large these are good jobs, filled by Americans, in packaging, processing, distribution, equipment, other inputs, lending, and insurance. Most of these jobs will 

move offshore if our production moves offshore. 

Fruits, vegetables, and other labor-intensive specialty crops represent half the 

value of American crop production, and constitute much of America’s food supply 

and a good diet. These industries, plus others like dairy, nursery and livestock, cannot survive in America without access to an adequate and affordable labor supply. 

Imagine a future in which America relies on sometimes hostile foreign countries for 

our food to the extend we do our oil today. Failure by Congress to enact timely and 

meaningful immigration reform will force farms to move out of the country, hastening American reliance on foreign countries to feed us. 

143

Why Legislation like AgJOBS Is the Answer 

The Agricultural Job Opportunity, Benefits, and Security Act of 2007 (AgJOBS) 

is equivalent to the agricultural provisions of S. 2611 that passed the U.S. Senate 

on May 25, 2006. AgJOBS restructures and reforms the current H–2A temporary 

agricultural worker program. This is accomplished by substantially streamlining the 

program’s administrative procedures, reforming the requirements of H–2A employers, streamlining the process for admission of H–2A aliens, and allowing aliens not 

currently in the program to acquire H–2A status. AgJOBS also creates a means for 

aliens who have made a substantial commitment to agricultural work in the United 

States, but do not have valid documentation, to earn adjustment to legal status by 

meeting strict conditions including specific pre- and post-enactment agricultural 

work requirements. The adjustment provision will provide an opportunity for agricultural employers to retain an experienced workforce while they anticipate and prepare for future participation in a reformed H–2A program. 

Proposals to solely reform H–2A, either legislatively or administratively, will not 

stabilize the current experienced workforce or provide essential transition time to 

wide reliance on H–2A. In excess of 70% of the agricultural labor force is believed 

to be unauthorized. The ‘‘bandwidth’’ does not exist for a large majority of this workforce to leave the country, be processed, and return in a seasonal context. While H–

2A reform is essential as a long-term solution, it cannot stand alone. 

The Farm Labor Crisis Is Immediate, and Congress Must Act Now 

Time is running out for family farms and businesses who cannot plant, tend and 

harvest their fruit, vegetables, and animals without a stable labor force. Hanging 

in the balance is our abundant, secure, domestically produced food supply. Also at 

risk are thousands of American jobs that depend on agriculture, jobs that will follow 

food production to foreign countries if that is where it goes. 

The labor force that sustains domestic agriculture was not born here. Over 80% 

of farmworkers are foreign-born. The lack of adequate legal ways for them to work 

here means that most are unauthorized under our immigration laws. Although 

these workers are having taxes, Social Security and Medicare withheld from their 

paychecks, increased enforcement of full implementation of the Department of 

Homeland Security’s social security No-Match rule will cause employers to lose the 

trained, experienced, and available labor force. 

Few Americans are available or willing to do this work. Farm work tends to be 

in rural areas. It is out in the weather, physically demanding, often seasonal or 

intermittent, and sometimes even migrant. Most Americans are not attracted to opportunities that are labor-intensive and seasonal by nature. Most wage earners 

choose opportunities with lower hourly pay than the $10.00 average for farm work 

for these reasons. Intense but failed domestic recruitment efforts, such as in California in the late 1990’s, and last year in Washington State, demonstrate that foreign-born workers will tend and harvest America’s livestock and crops. The question 

is, where will it be done? 

American agriculture needs and wants a stable, legal labor supply. The Agriculture Coalition for Immigration Reform respectfully urges Congress to finally act, 

and act wisely. Doing nothing simply perpetuates the silent amnesty that exists 

across the country today. AgJOBS is the bipartisan product of several years of negotiations among farm employer and farm worker representatives. It will provide the 

near-term and long-term workforce solution for the farm sector. The agricultural 

sector is the most vulnerable sector of the American economy. The failure of Congress to act will require farmers to force farmers not to plant or harvest, and will 

require force Americans to rely on foreign countries for their food supply—with dire 

economic and security implications. 

Thank you again for the opportunity to submit testimony to the hearing record. 

Please feel free to call upon the Agriculture Coalition for Immigration Reform as 

a partner and resource for information regarding the labor needs of American agriculture. 

Respectfully, 

Sincerely,

LUAWANNA HALLSTROM, ACIR Co-Chair,

Harry Singh & Sons, CA;


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CRAIG J. REGELBRUGGE, ACIR Co-Chair,

American Nursery & Landscape Assn., D.C.;

JOHN YOUNG, ACIR Co-Chair,

New England Apple Council, NH.


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