U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

79–584 PDF 2013

AGRICULTURAL LABOR: FROM H-2A TO A WORKABLE AGRICULTURAL GUESTWORKER PROGRAM 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

IMMIGRATION AND BORDER SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

FEBRUARY 26, 2013 

Serial No. 113–3 

Printed for the use of the Committee on the Judiciary 

( 

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

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

MARK AMODEI, Nevada 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

KEITH ROTHFUS, Pennsylvania 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION AND BORDER SECURITY

TREY GOWDY, South Carolina, Chairman 

TED POE, Texas, Vice-Chairman 

LAMAR SMITH, Texas 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

MARK AMODEI, Nevada 

RAU ́ L LABRADOR, Idaho 

GEORGE HOLDING, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

LUIS V. GUTIERREZ, Illinois 

JOE GARCIA, Florida 

PEDRO R. PIERLUISI, Puerto Rico 

GEORGE FISHMAN, Chief Counsel 

DAVID SHAHOULIAN, Minority Counsel 
(III) 

C O N T E N T S 

FEBRUARY 26, 2013 

Page 

OPENING STATEMENTS 

The Honorable Trey Gowdy, a Representative in Congress from the State 

of South Carolina, and Chairman, Subcommittee on Immigration and Border Security .......................................................................................................... 1 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 2 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 4 

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

of California, and Ranking Member, Subcommittee on Immigration and 

Border Security .................................................................................................... 5 

WITNESSES 

Bob Stallman, President, American Farm Bureau Federation 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 10 

Chalmers R. Carr, III, President, Titan Farms, Ridge Spring, SC 

Oral Testimony ..................................................................................................... 14 

Prepared Statement ............................................................................................. 17 

Mike Brown, President, National Chicken Council, on behalf of the Food 

Manufacturers Immigration Coalition 

Oral Testimony ..................................................................................................... 38 

Prepared Statement ............................................................................................. 40 

Giev Kashkooli, 3rd Vice President, United Farm Workers 

Oral Testimony ..................................................................................................... 44 

Prepared Statement ............................................................................................. 47 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

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

on Immigration and Border Security ................................................................. 54 

Material submitted by the Honorable Trey Gowdy, a Representative in Congress from the State of South Carolina, and Chairman, Subcommittee on 

Immigration and Border Security ....................................................................... 102 

(1) 

AGRICULTURAL LABOR: FROM H-2A TO A 

WORKABLE AGRICULTURAL GUESTWORKER 

PROGRAM 

TUESDAY, FEBRUARY 26, 2013 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON IMMIGRATION AND BORDER SECURITY

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 2:02 p.m., in room 

2141, Rayburn Office Building, the Honorable Trey Gowdy, (Chairman of the Subcommittee) presiding. 

Present: Representatives Gowdy, Goodlatte, Poe, Smith, King, 

Jordan, Amodei, Labrador, Lofgren, Conyers, Jackson Lee, Gutierrez, Garcia and Pierluisi. 

Staff present: (Majority) George Fishman, Chief Counsel; Allison 

Halatei, Parliamentarian & General Counsel; Graham Owens, 

Clerk; (Minority) Perry Apelbaum, Staff Director & Chief Counsel; 

and David Shahoulian, Minority Counsel. 

Mr. GOWDY. Good afternoon. The Subcommittee on Immigration 

and Border Security will come to order. 

Without objection, the Chair is authorized to declare recesses of 

the Committee at any time, and in that regard I would apologize 

to the four witnesses upfront. There will be votes called at some 

point during this hearing. I will commit to you to come back as 

quickly as these tired old legs will bring me back. So I apologize 

in advance for any inconvenience, but it is unavoidable. 

With that, I would like to welcome, on behalf of all of us, all of 

our witnesses. 

There are at least three things that we all remember from this 

year’s Super Bowl: the power shortage; the assault and battery 

that was not called in the end zone on fourth down; and most importantly, a commercial with Paul Harvey’s voice celebrating the 

respect that all of us have for the American farmer. 

Farming is more than just a means of securing a safe, reliable 

food source. Farming is more than just living in harmony with land 

and withstanding the vagaries of nature. Farming is a way of life. 

It is a culture, a uniquely American culture in many regards. We 

would do well to place ourselves in the shoes of farmers because 

we sometimes lose track of what it takes for growers to actually 

put this bounty on the world’s tables. We lose track of what it 
2 

takes for them to give us the safest, most efficient, most reliable 

agricultural system in the world. 

For those crops that are labor-intensive, especially at harvest 

time, hard labor is critical. One grower might need only one or two 

hired workers to help plant, tend and harvest several hundred 

acres of wheat. However, another might need hundreds of seasonal 

workers to harvest hundreds of acres of fruits or vegetables, and 

a dairy or a food processor might need hundreds of workers year 

round. 

It is universally agreed that at least half of our seasonal agricultural labor supply is made up of workers without legal residency 

status. This figure is probably much more than half, and could 

comprise upwards of 1 million unauthorized workers. As Congress 

considers yet again immigration reform, we must decide whether 

and under what circumstances and conditions growers can continue 

to rely on these workers. 

We all seek a future without reliance on unauthorized workers. 

But to accomplish that, we need a guestworker program to provide 

growers with the labor they need, indeed all of us need. 

What about the current H-2A agricultural worker program? This 

program is numerically capped, and initial expectations were that 

growers would use hundreds of thousands of H-2A workers each 

year. Yet, the State Department only issues about 50,000 visas a 

year. So why is it so under-utilized? 

What I am going to do today is ask the farmers, because in the 

eyes of many, the program itself is designed to fail. It is cumbersome. It is full of red tape. Growers have to pay wages far above 

the locally prevailing wage, putting themselves at a competitive 

disadvantage with growers who use illegal labor. Growers are subject to onerous rules, such as the 50 percent rule, which requires 

them to hire any domestic worker who shows up even after the H2A worker has arrived from overseas. Growers can’t get workers in 

time to meet needs dictated by the weather. And finally, growers 

are constantly subject to litigation by those who don’t think the H2A program should even exist. 

What growers need is a fair and workable guestworker program. 

They need a program that gives them access to the workers they 

need, when they need them, at a fair wage and with reasonable 

conditions, and they need a partner in the Federal Government, 

not what is often perceived as an adversary. 

A reformed guestworker program will work better for growers 

and for workers. If growers can’t use a program because it is too 

cumbersome, none of its worker protections will benefit actual 

workers. If a program is fair to both growers and workers, it will 

be widely used and workers will benefit from its protections. 

I look forward to hearing today’s witnesses and learning how 

they would reform our agricultural guestworker system. 

I now would recognize the past Chairman of the full Committee, 

Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Gowdy, for your comments 

about our first hearing of the Immigration Subcommittee. I am 

glad we are here to talk about our country’s agricultural labor 

needs, and I welcome the four distinguished witnesses that are 

with us today. 
3 

We talk about how our agriculture industry depends on the migrant labor. Right now, half or more of the 2 million farmworkers 

picking our crops and harvesting our fruits and vegetables, I am 

sorry to say, are undocumented immigrants. I think this is unsustainable, and I think that the entire Committee is motivated to 

try to do something about this. 

I feel that we all have the common goal of solving this problem, 

and I believe the discussion with the witnesses before us can help 

bring us closer to the solution. 

I want to begin by talking about what we mean when we talk 

about our agricultural labor needs. We know that these are hard 

jobs. We know it is back-breaking work. In many ways, it is also 

skilled work. Maybe you don’t need a Ph.D. in engineering, but I 

doubt most engineers would be very good at cutting lettuce in exactly the right way to bring it to market. 

We also know that there are Americans and immigrants with 

work authorizations who perform this work, and there are not 

nearly enough of them to get the job done. This is important to 

Members of Congress from districts that produce the hand-picked 

produce that we all enjoy. Their local economies are built upon a, 

frankly, untenable situation. They depend on the labor of undocumented immigrants, which means they depend on our willingness 

to tolerate that unacceptable situation. 

The U.S. Department of Agriculture reports that every on-thefarm job supports 3.1 upstream and downstream jobs in processing, 

trucking, distribution. These jobs are generally held by American 

workers, so the destruction of agriculture and the offshoring of all 

these farm jobs means the loss of millions of other jobs in communities across the country. 

It is important to us. So the question that we are faced with is 

what do we do? Last Congress, we heard over and over that the 

solution is to reform the H-2A program for temporary seasonal agricultural workers, or to create an entirely new program to accomplish that same goal. This Committee never considered proposals 

to allow all of our current undocumented workers who work year 

after year at the same farms, provide skilled, dependable labor that 

benefits us all, to earn permanent legal status. These are people 

who have families, have been paying taxes, are good people, and 

are already doing the work that benefits us all. 

Does it make sense to anyone that we should deport all of our 

current workers and replace them with half a million new temporary workers who can only stay for 10 months and must come 

and go back every year? It would take billions of dollars to deport 

the farmworkers we already have, something that we know can 

never happen, and we would require growers across the country to 

spend hundreds of millions of dollars bringing in new farmworkers. 

So, I conclude with these suggestions. Number one, let’s find a 

way to provide legal status to current undocumented farmworkers. 

And secondly, let’s see if we can collectively create a new temporary visa program to bring in new farmworkers when we need 

them, and this would be efficient for both the employers and give 

the much needed and deserved protection to the workers. 

And so we welcome you, gentlemen, and I thank the Chairman 

for his indulgence, and I yield back my time. 
4 

Mr. GOWDY. I thank the gentleman. 

The Chair would now recognize the gentleman from the great 

State of Virginia, the Chairman of the full Committee, Mr. Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman. I appreciate your 

holding this hearing. As former Chairman of the House Agriculture 

Committee, I have had the opportunity to learn first-hand what 

farmers face in dealing with the H-2A program. It is a costly, timeconsuming, and flawed program. Each year, employers have to 

comply with a lengthy labor certification process that is slow, bureaucratic, and frustrating. It is a process that forces them to expend a great deal of time and money each season in order to prove 

to the Federal Government what nearly everybody already knows 

is the case: that legal, dependable farm labor is very hard to find. 

In addition, the law forces them to pay an artificially inflated 

wage rate, higher than the prevailing wage in their region, and 

provide housing and daily transportation for their workers at their 

own expense. These farmers are paying an average of $10 an hour 

or more, and still cannot find enough Americans willing to take the 

jobs. Even worse, as a result of complying with these H-2A regulations, H-2A farms almost always find themselves at a competitive 

disadvantage in the marketplace. 

What all of this tells us is that farmers who participate in the 

H-2A program do so as a matter of last resort and conscience. They 

do it because they know that realistically, most of the available 

farm labor is illegal, and they don’t want to break the law. A guestworker program should help farmers who are willing to pay a fair 

wage for law-abiding, dependable workers, not punish them. For 

this reason I support replacing the H-2A program and implementing new policies that will bring our illegal agricultural workers out of the shadows as a first step in the process of overhauling 

our Nation’s immigration system. 

Addressing the complex labor issues of the relatively small agriculture sector can help us understand how we can build our broader immigration laws and enforcement mechanisms in order to enhance the U.S. economy and make our immigration laws more efficient and fair for all involved. 

Instead of encouraging more illegal immigration, successful 

guestworker reform can deter illegal immigration and help secure 

our borders. I believe we should enable the large population of illegal farmworkers to participate legally in American agriculture. 

Those eligible will provide a stable, legal agricultural workforce 

that employers can call upon when sufficient American labor cannot be found. 

In addition, a successful guestworker program will provide a 

legal, workable avenue for guestworkers who are trying to provide 

a better life for their families. It is well past the time to replace 

the outdated and onerous H-2A program to support those farmers 

who have demonstrated that they will endure substantial burdens 

and bureaucratic red tape just to employ a fully legal workforce 

and to offer a program that is amenable to even more participants 

in today’s agricultural economy. 
5 

We can do this by designing a program with practical safeguards 

and expanding the current universe of jobs to include dairy jobs 

and work in food processing plants, among other things. 

I thank Chairman Gowdy for holding this important hearing, and 

I look forward to hearing from all of our distinguished witnesses 

today. 

Mr. GOWDY. I thank the gentleman from Virginia. 

The Chair would now recognize the gentlelady from the great 

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

Lofgren. 

Ms. LOFGREN. Thank you, Mr. Chairman. I want to thank both 

you and Chairman Goodlatte for holding this hearing. 

As we know from the three hearings we held on this issue in the 

last Congress, as well as many other hearings before that, nowhere 

is evidence of our broken immigration system more glaring and 

acute than in the ag sector, where as much as 75 to 80 percent of 

the workforce is undocumented. I am sure we agree that we can’t 

begin to fix our immigration system without finding a solution to 

the agricultural problem. I expect that both Chairmen are committed to finding such a solution. I am committed to working with 

them to finding solutions in this Congress. 

Let’s quickly look at the facts. As we know from past hearings, 

mechanized crops like corn, wheat and soy are not the issue here. 

The challenge is with seasonal, labor-intensive fruit and vegetable 

production, as well as year-round dairy and livestock. These areas 

require a migrant, flexible, and experienced workforce. While farmers do their best to plan harvests, unexpected changes in humidity 

or temperature can suddenly move a harvest up, giving growers 

just days to pick valuable crops. Failure to find experienced workers or any workers at all can lead to significant losses. These losses 

can ripple through our economy. 

Agriculture continues to be a major sector of our economy and a 

primary U.S. export. In fact, we export so many agricultural products, many more than we import, that this sector is regularly the 

largest in which we see a trade surplus. Yet, Congress has long ignored the labor needs of this sector. 

For decades, our country has rightfully educated our children for 

work in other areas. At the same time, our immigration laws have 

made it all but impossible to fill the resulting void with legal foreign workers. For example, despite a need for millions of workers, 

some on a permanent basis, our immigration laws issue only 5,000 

green cards per year to people without bachelor’s degrees. That is 

5,000 per year to be shared not just by ag employers but also 

landscapers, restaurants, hotels and nannies, and many other jobs 

where immigrant workers fill a crucial need. 

The H-2A temporary worker program has not filled the gaps either. Farmers often complain that the program is too bureaucratic 

and slow, and surveys show that H-2A workers often arrive weeks 

after they are first needed. Many growers feel they cannot make 

the program work, and that is why the program has been used so 

sparingly, reaching the high water mark of 64,000 visas in 2008. 

In that environment, should anyone be surprised that market 

forces work their magic to pair up willing employers and willing 

workers? If we are honest, we must admit that Congress essen-
6 

tially left farmers with no choice but to hire undocumented workers. Let’s not fool ourselves; we all knew it was happening, and we 

looked the other way as workers came to fill the jobs that our country desperately needed filled. Many of our constituents are still in 

business because those workers came here. 

So what do we do now? Do we accept responsibility for creating 

this mess, recognize that we have an experienced workforce that 

has been providing critical services to the country for years, and 

provide a way for them to attain legal status and continue to help 

this country succeed? Or do we, as some have previously suggested, 

attempt to throw out millions of agricultural workers just to force 

our growers to import millions of other workers through government controlled programs that have not worked in the past? 

I think we will all agree that the only viable solution is a balanced approach that both preserves the current workforce and 

makes it easier to meet future needs with new workers. If we 

learned anything from our many hearings on this issue, it is that 

a one-sided solution won’t work. There was a time when we understood that. Years ago, growers and farmworkers came together to 

craft the ag jobs compromise. Supported by both business and 

labor, ag jobs also had the strong support of many Members on 

both sides of the aisle. 

We know that some growers no longer support that compromise, 

and that most Republicans withdrew their support in years past. 

But it nevertheless shows that all sides can reach a balanced, bipartisan agreement when we work together for a common purpose. 

Now, I am heartened by the news that the American Farm Bureau and the United Farm Workers have reengaged in talks to 

reach a balanced and thoughtful compromise, and I welcome those 

negotiations, and I commit to doing what I can to ensure their success. The country really needs that you all succeed. We must do 

now what America does best, be pragmatic. We must recognize that 

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

of entire industries, particularly agriculture, so people took matters 

into their own hands. Yes, the farm workers came without obeying 

immigration rules, and almost every fruit and vegetable farm in 

the country also broke the law by hiring them, and the government 

essentially let it all happen. 

Congress can’t escape our role in this. We need to recognize that 

and to do what is right for our country, and I have confidence actually that we will do so. 

Thank you, Mr. Chairman. 

Mr. GOWDY. I thank the gentlelady from California. 

The entire Committee welcomes a very distinguished panel of 

witnesses today. I am going to introduce you en banc, and then I 

will recognize you individually. Many of you have testified before, 

so you are familiar with the lighting system. Green means go, yellow means speed up—I hope there is no law enforcement around— 

and red means, if you can, go ahead and conclude. 

We are first delighted to have Bob Stallman. Mr. Stallman is a 

rising cattle farmer from Columbus, Texas. He is the President of 

the American Farm Bureau Federation. Mr. Stallman was first 

elected president in January 2000. The American Farm Bureau 

Federation is an independent, non-governmental, voluntary organi-
7 

zation governed by and representing farm and ranch families. Prior 

to becoming President of the American Farm Bureau Federation, 

Mr. Stallman served as President of the Texas Farm Bureau. He 

became a member of AFBF’s Board of Directors in 1994. Mr. 

Stallman graduated with honors from the University of Texas at 

Austin in 1974. 

After he testifies, it will be Mr. Chalmers Carr, who is the President and CEO of Titan Peach Farms, which is in South Carolina, 

its largest commercial peach operation. He is also treasurer of the 

South Carolina Peach Council, Chairman of the South Carolina 

Farm Bureau Labor Committee. Mr. Carr began his farming career 

in 1990 and has been with Titan Farms since 1995. He has participated in the H-2A program for 13 years. He received his Bachelor’s 

degree from Clemson University. 

Mr. Michael J. Brown currently serves as the President of the 

National Chicken Council. The National Chicken Council is a national non-profit trade association representing the U.S. chicken industry. Prior to his joining the NCC, Mr. Brown served as Senior 

Vice President for Legislative Affairs of the American Meat Institute. He also served as the treasurer of AMI’s political action committee, AMI PAC. Mr. Brown earned his Bachelor of Science in political science and history from the State University of New York, 

Brockport. 

And finally, we have Mr.—I’m just going to tell you right now I 

am going to mess this up, but I think the last name is pronounced 

Kashkooli. Is that fair? Okay, all right. Mr. Kashkooli is the legislative and political director and third Vice President of the United 

Farm Workers of America, overseeing the union’s political, legislative, research and communications work. He served with the UFW 

for 14 years throughout California, New York, Washington and 

Florida, and across to California. He graduated in 1989 from 

Brown University in Rhode Island, where he first became active in 

supporting the United Farm Workers’ cause. 

Mr. Stallman, we will begin with you. On behalf of all of us 

again, we welcome you and thank you for your participation. 

TESTIMONY OF BOB STALLMAN, PRESIDENT, 

AMERICAN FARM BUREAU FEDERATION 

Mr. STALLMAN. Thank you, Mr. Chairman, Members of the Subcommittee. My name is Bob Stallman. I am a rising cattle producer 

from Texas and serve as President of the American Farm Bureau 

Federation. I appreciate the opportunity to testify today regarding 

my organization’s views on the agricultural labor challenge facing 

food production in the United States. 

America’s farmers, livestock producers, fruit and vegetable growers, and dairy producers all have specific labor demands. But those 

demands vary by region, by commodity, by season, and by market 

characteristics. We desperately need—in fact, we have needed for 

some time—a system that is flexible, adaptable, efficient and economic for producers. This system must attract a sufficient number 

of competent, willing and able employees to sustain and grow production, allow the recruitment and hiring of non-resident agricultural workers when the need is demonstrated, and allow an oppor-
8 

tunity for some current non-resident agricultural workers to apply 

for legal resident status. 

This need for change is partly driven by the failure of the current 

H-2A program. Farmers and ranchers have witnessed increased denials, seemingly arbitrary changes in the interpretation of longstanding agency rules, dates of need that have gone unmet. In 

short, the program as it is administered today is simply not doing 

what Congress designed it to do. 

A year ago, American Farm Bureau set out to identify what such 

a system would look like. We established a working group from 

around the country that considered the needs of fruit and vegetable 

growers from California and Florida, livestock producers and custom harvesters in the Midwest, dairy farmers in upstate New York 

and everywhere in between. And we didn’t just talk to ourselves. 

We sought input from worker advocates, Members of Congress on 

both sides of the aisle, Committee staff, labor unions, and labor advocate groups. 

We also talked to other agricultural interests. This led to the 

founding of the Agriculture Workforce Coalition. Clearly, we wanted to identify the needs of growers, but we also wanted to be sensitive to the rights and needs of workers. To summarize briefly, our 

program would be a wholly new program that is market based. We 

envision that, over time, it would entirely replace H-2A. It would 

be administered by the U.S. Department of Agriculture. Further, it 

would eliminate unnecessary bureaucracy and expenses both for 

the government and employers, and it would provide workers job 

portability and the freedom to quit and leave for other positions if 

they wish, a right they currently do not have under H-2A. 

Importantly, it would broaden the program to all of agriculture, 

including year-round jobs. There is currently no program, even H2A, which provides this opportunity to workers or employers. 

It would allow employers to offer a contract for certain jobs, but 

would not require workers to take such positions, an option they 

currently do not have. 

My written submission to the Committee goes into much greater 

detail about our proposal, and I will be pleased to answer questions 

from the Committee about any specific provision. 

Provided that this Committee and Congress can adopt such a 

program, my organization would be prepared to accept greater employer verification obligations, such as E-Verify. As you may recall 

in the last Congress, Farm Bureau could not support the E-Verify 

legislation approved by this Committee for the simple reason that 

we were not provided a workable program. 

There is an important additional provision to our program that 

I would like to stress. In order to provide short-term stability and 

an orderly, effective transition to this new guestworker program, 

we believe Congress should include provisions permitting certain 

workers who have worked in U.S. agriculture who might not otherwise qualify to obtain work authorization. Granting existing experienced agricultural workers work authorization is a crucial part of 

making sure that there is not economic dislocation in the agricultural sector while we transition to a new program. 

Last, while I am testifying today on behalf of American Farm 

Bureau, I want to reiterate the impact of the Agriculture Workforce 
9 

Coalition. Agriculture has faced disagreements in the past. Today, 

the AWC represents a range of broad agricultural interests from 

coast to coast. The unity of this group speaks volumes for the importance of this issue for the industry. The proposal I have outlined 

today is aligned with the views of the AWC, and all of agriculture 

is united behind this common effort to break with the past and construct a model program that will work for us in the future. 

All of us recognize the highly contentious nature of this debate, 

but we urge the Committee to remember one overriding fact: U.S. 

agriculture needs a comprehensive, workable solution. We cannot 

wait, and we pledge our support to you and all Members of the 

Committee as you grapple with this issue. 

I appreciate this opportunity to testify and will be pleased to answer any questions from the Committee. 

[The prepared statement of Mr. Stallman follows:] 
10 

I.:' 

Statement of the 

American Farm Bureau Federation 

TO THE HOUSE COMMITTEE ON THE JUDICIARY 

SUBCOMMITTEE ON IMMIGRATION AND BORDER SECURITY 

RE: AGRICULTURAL LABOR REFORM: FROM H-2A TO A 

WORKABLE AGRICULTURAL GUESTWORKER PROGRAM 

FEBRUARY 26, 2013 

Presented by: 

Bob Stallman 

President 

eOOMarylam:lAve sw I Suire 100.oW i \t\Iashington, DC 20024 I P 202-"1015-3500 1 t 20:2 400 3600 1 WW'ifJl:wrg: 
11 

Good afternoon and thank you for the opportunity to testify before the subcommittee on behalf 

of the American Farm Bureau Federation (AFBF) Reforms to the immigration system must 

assure that American agriculture has a legal, stable supply of workers, both in the short- and 

long-term. This includes attracting a sufficient number of competent, willing and able 

employees to sustain and grow production; allowing the recruitment and hiring of non-resident 

agricultural workers when the need is demonstrated; and allowing an opportunity for some 

current non-resident agricultural workers to apply for legal resident status. 

We appreciate Chairman Goodlatte's recognition of this vital issue for agriculture and appreciate 

the opportunity to provide insight to the committee, not only about the demonstrable failings of 

the H-2A program, but what we believe agriculture needs in a modern guestworker program to 

ensure access to a legal workforce into the future. There is a critical need in agriculture for a 

legal, stable supply oflabor, and that need has only been exacerbated in the last several years. 

Two developments in particular are driving this need for change: 

1. The expanded use ofE-Verify by state governments and the potential enactment of 

mandatory E-Verify in any potential refonn legislation. The reason for farmers' concern 

is not that they wish to employ unauthorized workers: it is that they know that once EVerify is required, their ability to retain some of their existing workers, replace workers 

who leave and to retain those new workers will be severely jeopardized without a 

workable guest worker program. 

2. Over the past four years, the Department of Labor's implementation of the H-2A program 

has made a difficult program increasingly less workable. Farmers and ranchers have 

witnessed increased denials, seemingly arbitrary changes in the interpretation of 

longstanding agency rules, dates-of-need that have gone unmet - in short, the program as 

it is administered today is simply not doing what Congress designed it to do. Many 

farmers have reached the regrettable conclusion that the H-2A program, even with 

refonns, will never work, nor will the Department of Labor allow it to work. 

As a result, today's hearing could not come at a more opportune time. Knowing that 

immigration reform discussions are occurring and reform proposals are developing, it is 

imperative that we all work together to find a solution to agriculture's labor problem for today 

and for the future. In our view, this is not a partisan issue and should not become one. In a 

nutshell, we want to keep farmers in the U.S. growing food, tending livestock and contributing to 

the American economy. We want to keep these jobs in America for U.S. workers, not out source 

them. It is only when U.S. workers cannot be found that producers need the flexibility to use 

foreign-based workers. 

Farmers and ranchers strive to produce a high quality food product for our consumers grown in 

American soil. They work hard every day to ensure the vast array of products on grocery store 

shelves are fresh, safe, and in excellent condition. To ensure that high quality product, farmers 

and ranchers must have access to a stable work force. Over a million workers are required to 

ensure that perishable, fragile crops are harvested on time and that our cows are milked. 

2 
12 

work on farms and in fields Jobs in agriculture are physically demanding, conducted in all 

seasons and are often transitory. To most U.S. residents seeking employment, these conditions 

are not attractive. A number of studies document this fact, and farm worker representatives also 

acknowledged this in recent congressional testimony. Yet, for many prospective workers from 

other countries, these jobs present real economic opportunities. Fanners have done their best in 

the last two decades to work within a broken system. A few have been able to navigate the 

difi'iculties and expense of the H-2A program; for many others, they have relied upon work 

authorization documents that, in too many instances, are fraudulent. But federal law has strictly 

barred them from questioning those documents, and as a result we now have a labor force that is 

far too reliant on workers who lack proper work authorization. Due to faulty administration of 

the H-2A program, demographic shifts, an aging workforce, and the likelihood of heightened 

enforcement, this system is near collapse. It is not sustainable. Agriculture seeks a solution that 

provides our farmers and ranchers access to a stable, legal, reliable solution. 

This issue is not new for agriculture. However, rather than providing a solution that works for 

all sectors of the industry, past legislative attempts divided the industry. The most notable 

proposal, AgJOBS, provided a short-term remedy by allowing some currently experienced 

agricultural workers to adjust their status under certain conditions; it did not, however, reform 

the H-2A program in any meaningful way and provided virtually no access to a workforce in the 

future. Other bills have proposed changes to a guestworker program without addressing our 

current experienced workforce. It is critical that agriculture has a solution that addresses both. 

In an effort to find a solution that our broad membership could rally around, last year AFBF 

formed a grassroots working committee to discuss this issue and develop a proposal that could 

work for fruit and vegetable growers in California or Florida; sheepherders and custom 

harvesters in the Midwest; dairy farmers upstate in New York and everywhere in between. But 

we did not just talk to ourselves. At the outset, we sought the input of and met with 

representatives from a broad spectrum of interested groups, from worker advocates at 

Farmworker Justice, the staff of this subcommittee, representatives of the AFL-CIO, La Raza, 

and Senator Feinstein of California to seek their input. In short, we wanted to develop a 

framework that could serve as a catalyst that would not only unite the agricultural industry but 

that would command the respect of workers and their representatives. The future health of the 

industry is linked closely to the well-being of our employees; we respect their rights, their 

aspirations and their needs and we undertook our task with that perspective. At the conclusion of 

Farm Bureau's efforts, we helped create the Agriculture Workforce Coalition (AWC). The 

AWC represents the broad swath of agricultural interests - all of which recognize that past 

legislative attempts are no longer viable. The proposal I am outlining this morning enjoys 

unqualified support from across the spectrum of agricultural employers. 

The AWC proposal addresses agriculture's two prominent issues: 1) how to address agriculture's 

long-term needs; and 2) how we can ensure short-term stability in the sector. Any legislative 

reform must include both of these components. 

3 
13 

To ensure access to a legal and stable workforce in the future, we propose the creation of a new 

modem guestworker program. I think I can say without contradiction that agricultural producers 

have lost confidence that the H-2A program can be reformed to adequately meet our future needs 

or that the Department of Labor win ever administer the program in a way that is designed to 

make it work. Therefore, the new market-based program we are advocating would serve as a 

substitute and eventual natural replacement of the H-2A program. 

The program, administered by the U.S. Department of Agriculture, would allow employers the 

stability of a contract or the t1exibility of portability depending on their business needs. In that 

same vein, it provides workers with options and the choice to decide which job situation best fits 

their needs and interests; in other words, a worker in our proposal- unlike the current H-2A 

program - would not be required to enter into a contract for a set period. The program would not 

be restricted by seasonality requirements - rather an agricultural employer demonstrating a year 

round need could hire workers under contract to fit those needs. To account for the extended 

length of need, contract workers would have the ability to remain in the country for up to 3 years, 

with a commitment to their home country of 30 days during that period. But to accurately ret1ect 

the sector of agriculture that has more short-ternl labor requirements, portable visa workers 

would be granted work authorization for an 11 month period. E-verify could serve as the 

mechanism to ensure visa holders are not unemployed for more than 30 consecutive days while 

continuing to meet the terms of their visa. To protect domestic workers, employers would be 

subject to a domestic recruitment requirement but it would be streamlined. Employers also 

would be required to pay a reasonable agreed upon wage that ret1ects market conditions. To 

address any employment disagreements and to ensure an expedited remedy for any employer 

wrong, an employer would be required to cure any defect or face arbitration proceedings. 

This is not a refonn of the H-2A program. By developing a modem program structure, we have 

provided employers with greater certainty that they will have the workers they need, when they 

need them and at a cost that keeps us competitive in the marketplace. At the same time, workers 

are granted t1exibility, choice, and the ability to work for multiple employers while continuing to 

have a structure that enforces their rights and protects them from exploitation. The program also 

allows us to set up a new system that steers clear of the largest problems in the existing H-2A 

structure. It is not that we eliminated those provisions; it is that they no longer are necessary 

protections because of the framework of this program. 

This market based system attempts to replicate the domestic labor market - a model that works 

on the ground, providing workers with freedom of choice, market-based wages, and adequate 

protections, while taking into consideration security concerns realized by having a largely 

foreign-based labor force. We recognize that through this process it will require political vetting 

and accommodation for legitimate concerns of worker advocates. As I mentioned earlier, we 

began those discussions nearly a year ago and they are continuing. Ultimately, agriculture's goal 

is to develop a program that treats workers fairly, while being efticient and economical for 

employers to use. 

4 
14 

Mr. GOWDY. Thank you, Mr. Stallman. 

Mr. Carr. 

TESTIMONY OF CHALMERS R. CARR, III, PRESIDENT, 

TITAN FARMS, RIDGE SPRING, SC 

Mr. CARR. Thank you for allowing me the opportunity to explain 

my experiences and my views of the deficiencies in the H-2A pro-
15 

gram and share with you the needed reforms to create a viable 

guestworker program. 

I am the farmer in the group. I am the one here that does this 

every day. My name is Chalmers Carr, and I own Titan Farms in 

Ridge Spring, South Carolina, where I grow 5,000 acres of peaches 

and farm 700 acres of vegetables. I have been working within the 

H-2A program for the last 14 years, employing 500 legal alien 

workers just last summer. 

Looking beyond the role that agriculture plays in national security, I ask you to think about food safety and the impact that the 

fruits and vegetables imported into this country have on our society. Due to labor shortages, domestic production of fruits and vegetables is declining, while imports are increasing. An FDA report 

shows that imported vegetables are three times more likely to be 

contaminated with foodborne pathogens and four times more likely 

to be treated with pesticides exceeding domestically grown produce. 

I ask you to ponder this one statement: A country with an abundant food supply has many issues. However, a country that cannot 

feed itself only has one. 

In order to have a vibrant and robust agriculture industry, we 

must have a workforce that is vibrant and robust as well. The current U.S. labor market is experiencing a negative demographic 

trend. The Baby Boomers are getting older, and our younger generations, who are far less in numbers, are using their brains instead of their backs. 

There is also an enormous misconception that our country has an 

abundant supply of American workers willing to work in the agriculture industry. Even in the recent recession, unemployment of 

domestic workers at the farm level did not increase. Furthermore, 

it is commonly accepted that 50 percent of the 1.2 million workers 

in agriculture are undocumented. I heard today it is 75 to 80 percent. Because of this large percentage of undocumented immigrants, states have felt abandoned by the Federal Government and 

have begun to pass their own immigration and employment 

verification laws. Such cavalier legislation is having a negative impact on the availability of farm labor. 

Currently, there is a shortage of workers regardless of their legitimacy. Demographic trends clearly show that this is an ongoing 

problem and that this is only going to get worse. This is why agriculture must have a viable guestworker program. 

The current H-2A program only supplies 4 percent of the labor 

force needed in agriculture. This statistic alone verifies the fact 

that the H-2A program is riddled with problems and is cumbersome to use, that the vast majority of agriculture employers 

have stayed clear of it. 

I would like to highlight the major problematic areas of the H2A program, details of which are contained in my written statement before you. First and foremost, the program is limited in who 

can participate. The wage rate is not market-based and not realistic. The 50 percent rule for recruitment, the application process, 

the requirement to provide housing, the transportation and visa 

fees, and lastly, the litigious nature of the program, these are the 

key reasons why the agriculture industry has not used the H-2A 

program. 
16 

As Mr. Stallman said, the agriculture community has been divided, and we have come together. The Agriculture Workforce Coalition, or AWC, is now speaking with a united voice, representing 

the diverse needs of agriculture employers from across the country. 

As you begin the debate on guestworker reform, I would ask you 

to consider the problematic nature of the current program and incorporate solutions that I have provided in my written statement 

which are consistent with the AWC’s principles on guestworker reform. 

Lastly, I would address this Committee and ask you to hear just 

one statement very clearly. The agriculture industry cannot endure 

another election cycle. Whether you tackle comprehensive immigration or not, the agriculture community needs immigration reform, 

and we need a guestworker program now. 

I would like to leave you with this last question. Would you rather have the food you feed your family grown on the fertile soils 

under the governance of the USDA and the FDA being harvested 

by lawfully admitted foreign nationals, or are you willing to accept 

putting food on the dinner table tonight that was grown in a foreign country with unknown production practices, unknown food 

safety protocols, while either way that food is still going to be harvested by a foreign national? 

It is my hope that Congress desires to ensure that American 

farmers can continue to feed Americans at home, with plenty left 

over to feed the rest of the world. Thank you for your time and consideration. 

[The prepared statement of Mr. Carr follows:] 
17 

Written Statement 

of 

Chalmers R. Carr III 

President 

Titan Farms LLC 

Ridge Spring, South Carolina 

February 26, 2013 

United States House of Representatives 

Committee on the Judiciary 

Subcommittee on Immigration and Border Security 

Hearing on Agricultural Labor: 

From H-2A to a Workable Agricultural 

Guestworker Program 

Testimony - C. Carr - 2/25/2013 Page 1 
18 

Subject: 

Chalmers R. Carr III 

President, Titan Farms LLC 

Ridge Spring, South Carolina 

United States House of Representatives 

Judiciary Subcommittee on Immigration and Border Security 

February 26, 2013 

Hearing on Agricultural Labor: From H-2A to a Workable Agricultural Guestworker 

Program 

Thank you for allowing me the opportunity to not only share my experience and views on the 

current deficiencies of the H-2A program, but to also share with you the needs of today's 

agribusiness industry in a workable guest worker program. I would like to thank the members 

of this committee for recognizing the tremendous need for creating a guestworker program that 

addresses the needs of all aspects of agriculture. 

My name is Chalmers Carr. I am the owner and operator of Titan Farms in Ridge Spring, South 

Carolina. Currently we are producing 5000 acres of peaches and 700 acres of vegetables 

crossing 25 square miles. For the past 14 years my company has been legally employing 

foreign workers via the H-2A guest worker program and this summer we provided jobs, 

housing, and transportation for over 500 workers. 

I am currently president of USA FARMERS, a national organization of agricultural employers 

with over 1000 members representing 44 states and all facets of agriculture. Central to the 

mission of USA FARMERS is to represent agricultural employers in our efforts to obtain a 

modern guest worker program. USA FARMERS recently joined with other labor-intensive 

agricultural trade associations to form the Agricultural Workforce Coalition and push for 

immigration and guest worker reform with a unified voice. 

In addition, I am also active in Farm Bureau and serve as Chairman of the South Carolina Farm 

Bureau Labor Committee and have previously served as Chairman of the American Farm 

Bureau Labor Committee. 

Testimony - C. Carr - 2/25/2013 Page 2 
19 

Before I explain how the current H-2A system is broken and share with you my views of a 

future guestworker program, it is important to understand the need for a modern guestworker 

program for agriculture, There are three areas of grave concern affecting today's workforce that 

have resulted in a labor-starved agricultural industry and a threatto the food supply of this 

great nation, First, our current limited domestic agriculture labor force is aging - the baby 

boomers are getting older - and not being replaced by younger workers. Second, my personal 

experience, which mirrors so many other employers, demonstrates there are insufficient 

numbers of agricultural workers and a general unwillingness of available American workers to 

take on these jobs. The third issue negatively impacting the agriculture industry is the lack of 

action on immigration at a national level that has forced states to act independently. All of 

these issues put at risk our domestically produced safe food supply and our national security. 

The overall labor force participation rate has declined and this trend is expected to continue 

and even accelerate from now until 2020. The US labor market is currently experiencing a 

negative demographic effect in which a large segment of the population is aging with less 

participation in the labor force and it is not being replaced at an equivalent rate by the younger 

generation. The Bureau of Labor Statistics reports workers who were 55 years and older 

accounted for approximately 13% of our labor force in the year 2000. By 2010 that number 

had grown to 19% and is projected to be 25% by the year 2020. Above and beyond having an 

aging workforce, we must recognize that we are training our future generations to use their 

brains and not their backs. Parents from all countries dream of better lives for their children 

and future generations. We simply want more for those who come after us. Coupled with these 

demographic changes, a segment of our labor force is not willing to perform the exigent labor 

required in agriculture. On a daily basis, our workers are required to work out the elements in 

jobs that can be physically challenging. Imagine harvesting peaches in July when the 

temperatures climb to over 100° F with 80% humidity while you are picking hundreds of thirty 

pound bags of fruit; or pruning a peach tree with lopping shears held over your head for an 

entire day in January in nearly freezing temperatures. 

There is an enormous misconception that our country has an abundant supply of Americans 

willing to work in the agricultural industry. Even with the recent recession, employment of 

Testimony - C. Carr - 2/25/2013 Page 3 
20 

domestic workers did not increase at the farm level. From 2010 thru the end of 2012 my farm 

advertised for 2000 job opportunities (see Figure 1.1). Four hundred eighty-three US referrals 

applied for these jobs and were hired accounting for less than 25% of my workforce need. One 

hundred nine of the referrals that were hired never showed up to work and 321 of them quitthe vast majority in the first two days! Those who quit and those who never reported to work 

account for 89% of the workers who accepted the job! Of the 321 who reported to work. only 

31 worked the entire season. There is no way I could have produced my peach and vegetable 

crops with a domestic workforce! 

Testimony - C. Carr - 2/25/2013 Page 4 
21 

Titan Farms U5 Referrals and Vi sa 's 

... . " 

- ~ 

-.~- ... us ".". ... ,. ,. , .. ~ ...... •• ,. ., m 

•• • m 

.- " " Fli"'I0_~"" 

~-. - B " " .. .: .... So'w 

..... _"" "" 

""Q..oo4'" 

Breakdown 

6% 

Testimony - C. Carr - 2/25/2013 

0 .. 

- I,ISF.oI_'"" ..... oI lI5 ~ ..... BII - ,~, U51.tIt" .. 

~ 

~ • n, ;; m 

.. , . 

" " 

• QuIt! No Show 

• Failed 10 Meet COnltact 

Requirements 

• FinlshedContr.ICt 

, .. 

~ 

,ft 

• • 

PageS 
22 

The current American workforce is comprised ofa percentage of undocumented workers. 

Surveys conclude there are 11,000,000+ undocumented foreign nationals living in our country 

today. Eight million of them are actively working making up 5% of the total US workforce. 

However, it is commonly accepted that 50% of the 1.2 million workers in agriculture are 

undocumented. The National Milk Producers Federation reports over 50% of their workers are 

immigrant laborers producing 62% of the nation's milk supply. The agricultural industry has 

been left in a vulnerable position because of its reliance on workers possessing documents 

showing legal presence in the US, but who, in reality may be unauthorized to work. Because of 

this large percentage of undocumented immigrants, states have felt abandoned by the federal 

government and have begun to pass their own immigration and employment verification laws. 

As a result of such legislation, many farms all over the US are having more and more trouble 

finding needed labor. Ensuing shortages of workers have pushed domestic prod uction of fresh 

fruits and vegetables abroad costing American producers millions of dollars. In 2010, Georgia's 

legislature passed a state immigration law that had a substantial negative effect on the state's 

agricultural industry that accounts for 12% of the state's GDP. Ayear later Georgia's farm gate 

losses were estimated to exceed $300 million and the total financial impact to the state was 

close to $1 billion. Another report prepared by the American Farm Bureau Federation estimates 

the national effect of state immigration legislation could exceed $9 billion in farm gate losses 

for agricultural producers. 

However, even in states where new immigration laws are not on the books, widespread 

agricultural labor shortages have been reported from coast to coast. Results from a 2012 

agriculture employment survey conducted by the California Farm Bureau Federation reported 

61 % of respondents claimed labor shortages. In labor-intensive fruit and vegetable crops, the 

shortage reported was even greater at 71 %. Washington state has the highest state minimum 

wage, nearly $2.00 above the federal minimum wage, yet their labor shortages have increased 

over the past several years as well. (see Figure 1.2) 

Testimony - C. Carr - 2/25/2013 Page 6 
23 

Figure 1.2 

Seasonal ~rl uKural Employment Shortago (In Percent) 

WeigMed by Labelr Force. Size of Employer Repoftinl) 

Washinglon State: 2007. 2008.2009. 2010. 20" , 2012 

Source: ESDILMEA. Monthly ~\gric:uHural Labor Ell1>loyrneni and Wage SUlVey 

", '" "" '. "n, '"' '"' '"' '" O~ , .. 00< ,., 

"'" ,"" 3.3~ ''''' "" 2. ~. ~ '0% 3.3% 3~ '" ". Le> 9~ 3.5% 

"'" 2.7% ,>% ,,. , .... 1 % 2,0% 1.3% '" 1.3% '2% 0.4% '" 1.7% 

"'" , "" 06% OS. '" OM", , ,. '" '" 0.6% ". ". 0'" 0'" 

,,"0 ,,. 00% 60. ",. OC~ 06% 0'"' 00% 60. 0'" 00% 60. 0" 

""' 60. 0'"' 60. 0'"' O.CI% 60. 60. ... eo" 57" , "" 0.0% ". ""' 0 .. 1 .. 0.- 6,5% ~:".4 72% 7'- 75% ... 3.4'1'0 , .. ,,~ 

.~ 

.. ~ 

,~ 

.~ 

•• oow; 

L -- ,~ -

" ,- I 1.0'" • 1, Ilnl _I ... .. ~ 

-,. "" ... " '"' ,- ... .., ~, ,- - [ . Mll .,. a lltt alMO .a11 . :HHI I 

Testimony - C. Carr- 2/25/2013 Page7 
24 

Food safety is another area that must considered in our country's need for a guestworker 

program. As domestic production has slowed or moved abroad due to labor shortages, imports 

of fruits and vegetables have increased annually over the last ten years. It is a staggering 

statistic that 50% of the fruits and 20% of the vegetables consumed in the United States are 

now grown outside of our borders. The FDA estimates that 15% of our average daily diet 

consists of products grown or processed outside the country. Furthermore another FDA report 

shows that of all the vegetables imported into the US, less than 1% is actually inspected. The 

results of those inspections are quite alarming. Imported vegetables are three times more 

likely to be contaminated with food borne pathogens and four times more likely to have been 

treated with pesticides exceeding the standards of domestically grown produce. It is evident 

that our food supply is going to be harvested by foreign workers, whether in this country 

or abroad. I would rather see this country admit foreign workers and be able to grow, 

harvest, and pack our food supply on our fertile American soils under our regulations 

than to import our food supply from abroad. 

An even more significant component to food safety is food security and its direct link to national 

security. History illustrates that development of a secure food source has led developed nations 

to political independence, stability and international influence. In a recent speech by VicePresident Joe Biden noted an intrinsic link between access to an adequate food supply and 

prosperity and stability. Former Secretary of Agriculture Dan Glickman alluded to soaring food 

prices and supply shortages as major contributors to the 2011 political uprising and 

governmental upheaval in Egypt. Wealthy Arab countries that watched what happened in 

Egypt and surrounding regions have begun actively purchasing agricultural land all over the 

world to ensure their citizens have a dedicated food supply. This is known as the "great land 

grab". One look at China and you recognize the fine line between political stability and an 

adequate food source. Currently China houses the largest population on the planet and they 

have also become the largest purchaser of land. China is dedicating their resources to ensure 

an adequate food supply in the years to come. A country having an abundant supply of food 

has many problems, however a country that cannot feed itself only has ONE problem! 

trust you can conclude the availability of an abundant legal labor supply for agriculture is 

paramount to our country's prosperity, food safety and national security. 

Testimony - C. Carr - 2/25/2013 Page 8 
25 

It is clear that we have a need for a guest worker program, however, the H-2A guestworker 

program in its current state only supplies 4% of the labor force used in agriculture. That 

statistic alone verifies the current H-2A program is riddled with so many problems and is so 

cumbersome to use that the vast majority of employers in the agriculture industry have steered 

clear of it even though the documentation of their workforce may be questionable. The present 

H-2A agricultural guest worker program was created in 1986 as a part of an overall 

immigration reform package that included unearned amnesty for about 1.1 million agricultural 

workers. Amnesty was erroneously assumed to be a long-term fix for future agricultural labor 

needs, so the law creating the H-2A program was a brief, general description of how such a 

program would work. Over the years, as administered by the US Department of Labor, the H-2A 

program became a nightmare of regulations and costs, while the amnestied workers 

immediately left the farm for other job opportunities in the wider economy. Following I will 

highlight some of the major problematic areas of the H-2A program preventing widespread 

adoption and use ofthe program: 

• Limited Participation - The program mandates that the job is seasonal in nature and 

that it must last no longer than ten months. This precludes participation in the program 

for any year round producer, such as the dairy, livestock and nursery industries, 

penalizes operations for diversifying and prevents growth within our industry. 

• Wage Rate - the Adverse Effect Wage Rate (AEWR) created by DOL is the #1 reason 

reported by producers across the country for not using the H-2A program. DOL uses a 

USDA wage survey of agriculture wages (not designed for this application) and 

manipulates the data to establish an artificial geographic wage rate that has no realistic 

comparison to market wages for actual jobs in the same area. On average, the present 

AEWR is 49% higher than market wages. Furthermore DO L adjusts the AEWR each year 

often after employers have entered into employment contracts. Employers must 

increase wages when the new wage is published thus putting them at further 

competitive disadvantages with non-H-2A producers both domestically and abroad. 

Lastly, the wage rate methodology appears to be subject to political agendas. This was 

never more evident than in 2010 when my company incurred a 28% wage increase 

costing us nearly $2 million in the ensuing twelve month period. 

Testimony - C. Carr - 2/25/2013 Page 9 
26 

The 50% Rule - This provision ofthe H-2A program requires that employers recruit 

and hire all US workers regardless of their skills and background through the 50% point 

of the employer's contract. The requirement continues even though guest workers are 

present and working on the farm. Farmers are willing to hire US workers who want to 

work these jobs, but we need more certainty in the hiring process. At my farm, less than 

6% of US workers who are hired actually finish the contract. Of 431 US hires in the past 

two years, only 31 actually completed the contract. The costs we incurred for additional 

staff, processing and training to fill those 31 positions was over $100,000! 

Advertising and recruitment as required by H-2A is a huge cost in time, money and 

productivity. First, growers must advertise in newspapers EVERY time they apply for 

workers, regardless of whether that advertising has produced any results in the past. 

Newspaper ads are expensive, especially Sunday papers in larger towns and 

metropolitan areas. Often several growers in the same small geographical area are 

advertising simultaneously, several times year. In addition, in today's modern world 

very few people think of a newspaper as a place to look for a job. 

A forthcoming study from the Center for Global Development and the Partnership for a 

New American Economy that analyzes H-2A employer records finds that in the two year 

period of 2011-2012, the nation's largest H-2A employer spent $90,000 on newspaper 

advertisements to recruit U. S. farm workers. During that two-year period, only five U. S. 

farm workers who applied stated they first learned about the job through a newspaper 

advertisement. Ofthose five, only one stayed on the job to complete the crop, earning 

roughly $8,000 in wages. 

Additionally, a recent DOL change under the current administration that reduces the 

number of visas requested by an employer based on the recruitment report makes the 

recruitment provision even more ineffectual for employers. For every US worker who 

says he will work the contract, a visa is lost by the employer. This happens even though 

there is no binding requirement for the US worker to actually show up to work or to 

finish the contract. This reduction of visas leaves employers shorthanded and forces 

them to incur additional costs and time delays requesting more workers. Thus the 50% 

Rule is the #2 reason employers do not use the H-2A program. 

Testimony - C. Carr - 2/25/2013 Page 10 
27 

• Application Process - The current H-2A program application process is riddled with 

excessive bureaucracy, dozens of confusing requirements and other "gotchas" (see 

Figure 1.3) that force many employers to hire attorneys or other third party agents to 

help navigate through the process. Presently an employer or his agent must contend 

with the State Workforce Agency (SWA), the Department of Labor (DOL) and the US 

Citizenship and Immigration Services Agency (USCIS). The application has several steps 

with defined timelines for each one. The first step is making a request for need of 

workers. This request must be made no more than 75 days, but no less than 60 days 

from the date of need (there are crops that can be planted and harvested within 60 

days!). How can producers of time sensitive crops that are greatly influenced by Mother 

Nature make employment commitments so far out? Furthermore the next steps must 

occur at 45 and 30 days from the date of need. Any misstep along the way, regardless of 

how minor, requires the process to restart and delays approval ofthe request. Yet the 

crops in the field cannot be put on hold, nor will they wait! The Department compounds 

these difficulties with its frequent disregard for the statutory requirement that it 

approve applications 30 days before the employer's date of need. 

A US Governement Accountability Office (GAO) report released in September of 20 12 

highlights DOL's inadequacies in processing applications in a timely manner. 

"For example, the Department of Labor (Labor) processed 63 percellt of 

applications in a timely manner in FY 2011, but 37 percent were processed afterthe 

deadline, including 7 percent that were approved less than 15 days before workers 

were needed. This left some employers little time for the second phose orthe 

application process, which is managed by the Department of Homeland Security 

(DH5). and for workers to obtain visas from the Department of5tate (5tate). 

Although workers can apply for visas online, most a/the 11-2A process involves 

paper handling, which contributes to processing delays. In addition, employers who 

need 1.vorkers at dIfferent times afthe season must repeat the entire process for 

each group of workers." 

Testimony - C. Carr - 2/25/2013 Page 11 
28 

Testimony - C. Carr- 2/25/2013 Page 12 
29 

• Housing - the requirement to provide housing is the second largest barrier preventing 

employers from using the program. Farm labor housing is expensive to build and 

maintain with construction costs often ranging between $5,000 and $10,000 per bed or 

worker. In the last five years, I have built four labor camps to meet standards set by 

OSHA, DOL, and my county government. Construction cost of each was over $7500 per 

bed or $250,000 per 32-man housing unit. (See Figure 1.4) In the past, some farmers 

built hOUSing as an incentive to attract traditional migrant workers to their area, 

however, this was not the standard in all areas of the country. In many areas of the 

country today urban sprawl has reached the door steps of American farms bringing 

zoning and other codes preventing farmers from building worker housing. It should also 

be noted owner provided housing adds a laundry list of regulations and requirements 

often leading producers to steer away from providing housing. 

Testimony - C. Carr - 2/25/2013 Page 13 
30 

Fillll~ 1.4 

Testimony - C. Carr- 2/25/2013 Page 14 
31 

• Transportation and Visa Fees - These are another set of issues that have become 

heavily regulated by the current DOL. At an average cost of over $600 per worker, the 

present regulations require an employer to reimburse the cost of each worker's 

incoming transportation, visa fee, recruiter fee, border crossing and daily subsistence 

while traveling to the US when the worker completes 50% of the work contract. 

However the US DOL website notes the Fair Labor Standards Act applies independently 

from the work contract and, as a result of a court ruling in the Arriaga case, employers 

are reimbursing these costs within the first week of employment.. 

• The Unknown costs of participating in the H-2A program - By design and 

implementation the litigious nature of this program as regulated by DOL over the last 27 

years has unequivocally weighed heavily on a farmer's decision of whether or not to 

enter the H-2A Program. The publically funded Legal Services Corporation agents across 

the country have a long history of filing what most people would call frivolous lawsuits 

against agricultural employers over relatively minor issues. Because an employer has no 

ability to cure minor mistakes or to have binding mediation or arbitration, they often fall 

prey to these lawsuits and typically settle out of court because the expense to battle in 

court is higher than the cost to settle. 

These key issues along with numerous others explain why the American agriculture industry 

DOES NOT use the current H2A program. Congress must address these issues if they truly 

desire to create a viable guest worker program for agriculture. 

Thus far I have explained why we need a guest worker program for agriculture and the disaster 

of the current H-2A program that only provides 4% of the agriculture labor force. Without 

argument the H-2A program is broken and in the midst of comprehenSive immigration reform I 

propose that as an alternative, we create a new flexible market-based guest worker system, not 

only for today's agriculture industry, but for tomorrow's as well. The new uncapped 

agricultural guest worker visa program should be flexible to address the unique needs of a very 

diverse and time sensitive industry. The first step should be to broaden the definition of 

Agribusiness to include all sectors of agriculture including processors. The new program 

should remove the artificial restriction to seasonal employment and permit farmers with year 

Testimony - C. Carr - 2/25/2013 Page 15 
32 

round operations to participate. For example, dairy farmers have no access to the H-2A 

program because cows are milked all year long. 

Once employers have made the job available to US workers through some modern process and 

have not had sufficient hires to fill all the positions, they should be free to participate in the new 

guestworker program. Agriculture production and process varies from crop to crop, animal to 

animal from state to state. Operations labor needs can be as short as 15 days, to year round and 

a new program must be flexible to ensure it is available to all of agriculture. A key component 

of a new program is the creation of a visa that would allow a worker to enter the country under 

a contract with a U.s. employer, or with a certified job offer with an "at will" work authorization. 

The visa should be valid for up to 12 months and he renewable, provided the guest worker 

complies with the law and periodically returns to his or her home country for a period of time 

each year. The program should also include foreign workers who live near the border and want 

to cross into the U.S. each day to work and then return home. Furthermore, the bar on entry 

into the u.s. for workers who have been here in undocumented status should be waived so that 

a worker who has worked in U.S. agriculture and broken no other laws can obtain a visa. 

The program should be administered by the U.S. Department of Agriculture (USDA), the agency 

that has the working relationship with the industry and is accustom to administering 

agricultural programs. Employers should register with the USDA for participation. Following is 

a description of major features of a viable guest worker program that would create a future 

flow oflegal workers into the agriculture industry: 

1. Agricultural employers, associations of agricultural employers, and farm labor 

contractors should he eligible to participate in the new program by registering with 

USDA: Registered employers will file an attestation application stating the total number of 

workers needed, anticipated date of need, general overview of the agricultural work provided, 

and designation of employment under contract or at-will, or combination thereof. 

2. Recruitment of U.S. Workers: An employer must recruit and hire any qualified U.S. workers. 

The recruitment period ends 30 days before the date of need or when the visa worker departs 

his/her home country, whichever is later. Due to the time sensitivity of many agricultural crops 

Testimony - C. Carr - 2/25/2013 Page 16 
33 

and the influence of weather on these crops, the program should have procedures to quickly 

address emergency labor needs and account for sudden weather or market changes. 

3. Petition Process with DHS: Upon registration, an employer can file a visa petition with DHS 

stating the number of workers needed, whether it is under contract or at will and if known, may 

name any beneficiaries of its petition. Unless there are independent grounds for exclusion under 

the INA, the employer's petition must be granted by DHS. 

4. A flexible visa program: We need a program that will accommodate the different sectors of the 

industry and their locality. It is imperative that in a new program ALL operations have access to 

workers. Regardless of an employer's duration of need (very short seasons to very long), the 

geographic location of the joh (distance from the horder), or lack of other agriculture johs in the 

area, all employers must have access to an adequate supply of workers. Employers would have 

the option to offer contract or at-will employment and workers would have the option of 

choosing whether they wanted to accept contract or at-will employment. 

+ Workers would have portability to select additional work opportunities. Upon 

completion of a contract, the worker may elect to continue working in the U.S. by 

moving to another position with a registered employer. 

+ At-will visa workers would have portability to move from employer to 

employer throughout the duration of their work authorization. 

5. Labor Standards and Conditions. There needs to be a realistic approach to these issues that 

recognizes the competitive domestic and international marketplace we live and work in. The 

wage rate should be transparent and predictable - and not be based on questionable surveys and 

suspect methodologies. Wages should refiectthe marketplace in agriculture, as they do in other 

parts of the economy. At that same time, we must also recognize that farmers already have thin 

profit margins and international competition from regions where labor is plentiful results in 

constant pressure on farms to remain competitive. 

A new, modern visa program should remedy the shortcomings of the H-2A program that is 

burdened with excessive costs found in no other visa program. For example, no other visa 

program requires employers to be responsible for transportation costs and no other visa 

program requires employers to provide housing. In addition, a new program must avoid the 

"gotchas" and resulting abusive litigation in the H-2A program. The vast majority of employers 

want to play by the rules and do the right thing, but the endless bureaucracy, conflicting 

requirements and fine print in the H-2A program leave too many opportunities for innocent 

and relatively minor mistakes to balloon into tens of thousands of dollars of added costs. For 

Testimony - C. Carr - 2/25/2013 Page 17 
34 

violations that don't pose an imminent threat to safety, employers should have the right to cure 

alleged violations before being hit with massive fines and lawsuits. 

Employment disputes between employers and workers should be subject to arbitration to 

ensure disputes are resolved quickly and efficiently without enriching lawyers. If a worker's 

pay was miscalculated, that should be corrected and the worker should be paid quickly. If a 

farmer has complied with the rules, he should not have to face years of litigation and tens of 

thousands of dollars of legal fees to prove it. A private right of action to file more lawsuits is 

not the answer to resolving disputes - unless, I suppose, you are a lawyer who makes a living off 

of litigation. Fines and even debarment from participation for serious repeat offenders in the 

program should be sufficient to deter bad behavior. Employers want to comply with the law 

and we should avoid creating a complex program that becomes nothing more than a trap for the 

unwary, which is too often what the H -2A program is. 

I would be remiss if I failed to address the argument of worker advocates that farmers only 

want cheap labor and exploitation of workers is rampant in agriculture. These arguments are 

old and I am tired of hearing them. I welcome each of you to visit my farm. You will see the vast 

majority of our foreign workers using personal cell phones, most of which are known as "smart 

phones" with cameras, e-mail and data plans. Today's technology is the best friend of anyone 

working in America. They do not need an advocacy organization who does not even know them 

to speak for them. I have provided a wi-fi hotspot on my farm that any of our employees may 

use. In the evenings and on the weekends, many workers use this internet connection to 

contact family and friends all over the world via e-mail, skype and other real-time 

communication options. The retail market has long required producers like me to address Food 

Safety practices long before the federal government became involved. Likewise, the pressures 

of social responsibility and social media will have a greater impact on the treatment of workers 

and work conditions than any advocacy group or government regulations. 

The call for comprehensive immigration is louder than I have ever heard in the past 15 years 

and, quite frankly, it's about time! However I caution you that comprehensive immigration 

without prioritizing guest worker reforms will be as incomplete as the Immigration Reform Act 

of 1986 where Congress gave unearned amnesty to 1.3 million foreign nationals. The failure 

Testimony - C. Carr - 2/25/2013 Page 18 
35 

was three-fold - belief the amnestied workers would solve agriculture's long term labor needs, 

failure to create a fraudulent proof employment authorization program, and the failure to 

properly address the need for a future flow of workers. When IRCA passed I was working for 

my uncle and personally escorted over 100 migrant workers from his tobacco and peach 

operation thru the amnesty process. Many workers left the farm immediately, the vast 

majority had moved on within a couple of years and within five years, all had left the farm or no 

longer returned seasonally as they had for the previous decade. Twenty-seven years later 

because of this short sightedness, eleven million plus undocumented foreign nationals are 

present in the United States. In my opinion Congress has been short-sighted and irresponsible 

regarding this ever growing problem. Polarized by extremists on each end of the spectrum and 

fearful of repercussions in polling booths on election day, Congress has avoided this issue for 

far too long. Individual states are taking a national issue and making it their own and have 

made the entire issue WORSE! 

I implore you to be the statesmen you were elected to be and meet immigration reform headon. Creating viable market based guest worker programs for the future should be your priority 

in comprehensive immigration reform. Programs allowing for a legal future flow of workers to 

all industries, from low-skilled domestic food production to ensure a safe and abundant food 

supply, to highly-skilled workers allowing for information exchange and entrepreneurial 

growth that will lead this country into the next century. Address the 11 million undocumented 

foreign nationals presently residing inside our borders in such a way that they will feel safe to 

come out of the shadows so we can account for all who reside in this country. Do not displace 

families from one another; instead provide them with legal work status allowing them to 

continue to be a productive part of our society, yet not rewarding them for breaking the law by 

placing them in front of or equal to an immigrant who has followed the rules. Adjusted workers 

should not be able to take jobs from any presently employed US worker or any guest worker 

who has been lawfully working within our system. In order to prohibit the mistakes of the past 

from recurring I encourage you, as part of this effort, to utilize the latest technology available to 

create an affordable, fraudulent-proof workforce authorization program. If this is done our 

border problems will be dramatically reduced and rather than focusing on workers who want 

to come to this country to work on our farms, the government can focus its attention on those 

Testimony - C. Carr - 2/25/2013 Page 19 
36 

individuals who want to come to the US to do harm. 

Understanding the enormous debate this topic will generate and the numerous other challenges 

Congress is facing. I foresee little time to properly address comprehensive immigration reform. 

However, I believe the failure by Congress to act on immigration at the federal level will have a 

disproportionate impact on American agriculture. An increase in action at the state level does 

nothing to repair this broken system. States have the ability to enforce immigration laws but 

they are unable to create guestworker programs. The agriculture industry MUST have guest 

worker reform this year whether it is a part of a large comprehensive bill or as industry specific 

legislation. 

The agriculture community has been divided over the last decade in regard to immigration 

reform. However recently we have come together in a unified voice as a group of organizations 

representing the diverse needs of agricultural employers from across the country. I join the 

members of USA FARMERS and a host of agricultural organizations from across the country in 

support of the Agricultural Workforce Coalition (AWC) and its principles of agriculture 

immigration and guestworker program reform. I humbly req uest that you consider the 

framework for program reform outlined by AWC as you delve into guestworker reform. These 

principles are highlighted above. This unity in agriculture surrounding guestworker reform is 

unprecedented and I would hate to lose that momentum by Congress's failure to move forward. 

The realization that currently the US labor force is changing demographically, the lack of 

interest in available agricultural jobs, the adoption of immigration and employment verification 

legislation at the state level and the current complex and costly H2-A program that is 

insensitive to the unique needs oftoday's agriculture leaves my industry and the security and 

prosperity of our country at risk. I hope you will consider the principles outlined herein as the 

framework for a future guest worker program that will address the needs of agriculture and 

provide a future flow of legal workers to the agriculture industry providing food, fiber, and 

shelter to America and across the globe. 

Testimony - C. Carr - 2/25/2013 Page 20 
37 

And so I leave you with this question - would you rather have the food you feed your family 

grown on our fertile soils under the governance of the USDA and harvested by lawfully 

admitted foreign nationals? Or will you accept putting food on your dinner table tonight that 

was grown in a foreign country with unknown production practices and food safety protocols? 

Either way, the food will still be harvested by a foreign worker. It is my hope that Congress 

desires to ensure American farmers can continue to feed Americans at home, with plenty left 

over to feed much of the rest of the world. 

Thank you for your time and consideration. 

Testimony - C. Carr - 2/25/2013 Page 21 
38 

Mr. GOWDY. Thank you, Mr. Carr. 

Mr. Brown. 

TESTIMONY OF MIKE BROWN, PRESIDENT, NATIONAL CHICKEN COUNCIL, ON BEHALF OF THE FOOD MANUFACTURERS 

IMMIGRATION COALITION 

Mr. BROWN. Mr. Chairman, Chairman Gowdy and Ranking 

Member Lofgren, I appreciate the opportunity to testify here today 

on the important issue of comprehensive immigration reform. 

I am Mike Brown, President of the National Chicken Council. 

NCC’s members produce and process more than 95 percent of the 

chicken consumed in the United States. I am testifying today on 

behalf of a broader Food Manufacturers Immigration Coalition. To 

date, much of the immigration reform discussion has focused on the 

need to retain highly skilled workers such as scientists and engineers, and the need for additional temporary agriculture workers. 

These are important objectives, but they do not meet the needs of 

our industry sector. 

We seek workers who will stay on the job to become skilled and 

efficient, helping us to keep our food products and employees safe. 

This takes investment, up to thousands of dollars spent on training 

and equipment for each employee. 

The coalition’s principles are as follows. Under enforcement, 

while border security has improved significantly over the past decade, improvements can be made to further lower the number of illegal border crossings. One suggestion the coalition has is to provide exit or expiration data to E-Verify to aid the government in 

its effort to track visas and prevent overstays. 

Under strengthening employment verification and preventing 

identity fraud, unfortunately the government does not provide employers with a reliable verification method to prevent identity 

fraud. E-Verify is a step in the right direction, but it must be 

strengthened. Our industry has had nearly 20 years of experience 

using this program. 

If strengthened, this program will serve as an effective and efficient virtual border, if you will, because the electronic data will 

keep folks from seeking employment if they know they can’t pass. 

Over the past decade, the government has discovered thousands 

of ineligible employees working for employers who have processed 

these employees through E-Verify. The system does not account for 

identity fraud. Currently, multiple people can earn wages on the 

same Social Security number or use the Social Security number of 

a deceased individual. 

The solution? Employers should be allowed to require an EVerify Self Check. E-Verify Self Check is an online service that allows individuals to check their employment eligibility before beginning a new job. The Self Check entry portal helps prevent identity 

fraud by melding E-Verify with an automated Connect The Dots 

program, similar to credit background checks when we all apply for 

credit cards or other information. 

Under the current interpretation of the Office of Special Counsel 

for Unfair Immigration-Related Employment Practices, employers 

may not require anyone to use Self Check in the employment process. In fact, we may not even discuss it with a prospective em-
39 

ployee. The Social Security Administration must be required to 

verify that Social Security numbers are not being used in duplicate 

locations or are not matched to deceased individuals. In return for 

participating in these aggressive screening programs, a safe harbor 

should be provided for employers that utilize the E-Verify Self 

Check and follow the automatic referral process. 

Under anti-discrimination, employers can often be caught between an employee verification obligation and non-discrimination 

enforcement. For example, the Department of Justice’s Office of 

Special Counsel has cited employers for allegedly acting too aggressively in verifying work authorization status of new hires. Simultaneously, the same business is often targeted for worksite enforcement action for not being vigilant enough. Statistic-based discrimination penalties have been imposed on employers who recruit outside the local community or work with the State Department to 

hire workers with refugee status when Americans are unavailable 

or unwilling to fill these jobs. 

Immigration reform legislation should require that DHS, DOJ, 

DOL, and other enforcement or anti-discrimination agencies consult internally and publish rules of the road; in essence, harmonize 

the law throughout the Federal Government. 

Access to labor. An effective occupational visa system may be the 

most important barrier to illegal immigration. The existing temporary programs for general labor skilled workers are for seasonal 

labor only, which does not help manufacturers whose occupational 

needs are year-round and ongoing. Ag jobs legislation, as important 

as it is, does not benefit food manufacturers. 

A manufacturing visa program should include flexible annual 

goals or targets for immigration that emphasize economic migration, predominantly employment-based migration. These goals or 

targets should be flexible and adjustable to reflect changing conditions. 

On earned legalization, our coalition supports an earned legalization program. Our broken immigration system has resulted in up 

to 11 million undocumented immigrants living in the shadows. 

Congress must provide a fair and practical roadmap to address the 

status of unauthorized immigrants in the United States. 

Mr. Chairman and Members of the Committee, again, I appreciate the opportunity to testify before you today. 

[The prepared statement of Mr. Brown follows:] 
40 

Testimony of Mike Brown 

President, National Chicken Council 

On Behalf of the Food Manufacturers Immigration Coalition 

Before the 

House Judiciary Committee Subcommittee on Immigration and Border Security 

Hearing on Agricultural Labor: From H-2A to a Workable Agricultural Guestworker Program 

2:00 p.m. February 26,2013 

2141 Rayburn House Office Building 

Thank you Chairman Gowdy and Ms. Lofgren. I appreciate this opportunity to testify today on 

the need for comprehensive immigration reform. 

I am Mike Brown, President ofthe Nation al Chicken Council. NCe's members produce and 

process more than 95 percent of the chicken consumed in the United States. Collectively, the 

chicken industry is directly responsible for 260,000 U.S. jobs and through supplier and ancillary 

industries, helps support almost 800,000 more. 

I am testifying today on behalf of a broader Food Manufacturers Immigration Coalition that is 

advocating some ofthe most progressive and far reaching immigration reform concepts 

proposed to date. The Coalition is comprised ofthe National Chicken Council, North American 

Meat Association, U.S. Poultry & Egg Association, National Turkey Federation, Virginia Poultry 

Federation, Georgia Poultry Federation, The Poultry Federation (representing Arkansas, 

Oklahoma and Missouri), California Poultry Federation and American Meat Institute. 

Collectively, the meat and poultry industry contributes about $832 billion in total to 

the U.S. economy and, through its production and distribution linkages, impacts firms in all 509 

sectors of the U.S. economy. In total, there are approximately 1.3 million employees whose 

jobs depend on the sale of meat and poultry products to the public. 

We are focused on five major themes: border security; a very simple improvement to the Everify system as an alternative to a national identity card; clarity in anti-discrimination laws; an 

occupational visa category that our industry can use that could be tied to local or regional 

employment; and, options to effectively address the 11 million undocumented workers in the 

shadows of our economy. 

To date much of the discussion has focused on the need to retain highly skilled workers such as 

scientists and engineers, and the need for additional temporary agricultural workers. These are 

important objectives, but they do not meet the needs of our industry sector. Our workers are 

neither highly skilled nor temporary. We are manufacturers, wanting a stable and permanent 

workforce that can help sustain the rural communities where we do business. 
41 

Some think there is an economic incentive for manufacturing employers to hire illegal 

immigrants at below-market wages. Nothing could be further from the truth. Our industry 

needs a stable workforce. We seek workers who will stay on the job long enough to become 

skilled and efficient, helping us to keep our food products and employees safe. This takes 

investment - up to thousands of dollars spent on training and equipment for each employee. In 

order to retain talent, we offer good wages, family health care, 401(k) plans, and language 

training. 

Immigrant workers bring many benefits to the communities where we have plants - often 

communities with declining populations. These workers and their families pay taxes and put 

down roots. They help prevent shrinking school enrollment. They use health benefits to support 

local health services. And they help keep local businesses open. 

Our principles: 

Enforcement 

While border security has improved significantly over the past decade, improvements can be 

made to further lower the number of successful illegal border crossings and address visa 

overstays. Congress must provide additional resources (technology, infrastructure, personnel) 

for reasonable enforcement of immigration laws (at the borders and in the interior). One 

example is to provide "exit" or expiration data to E-Verify to aid the government in its efforts to 

track visas and prevent overstays. 

Strengthen Employment Verification & Prevent Identity Fraud 

u.s. employers who hire unauthorized workers currently face stiff fines and criminal penalties. 

The criminal prohibitions in current law are extensive, and there is no need to expand them. 

Unfortunately, the government does not provide employers with a reliable verification method 

to prevent identity fraud and confirm whether new hires are legally authorized to work in the 

United States. E-Verify is a step in the right direction but does not work adequately in its 

current form. If strengthened, this program will serve as an effective and efficient "virtual 

border." 

Over the past decade, the government has discovered thousands of undocumented immigrants 

working for employers who made good faith efforts to verify the status of their employees 

including processing all new hires through E-verify. Only 1.7% of employees run through the EVerify system come back as non-confirmed. 98.3% of employees clear E-verify in less than 24 

hours. The system however does not account for our most common issue, identity fraud-a 

valid SSN# that does not relate to the person presenting it. Currently, multiple people can earn 

wages on the same Social Security Number (SSN) or use the SSN of a deceased individual. The 

tools currently available to employers do not indicate if the SSN presented is a duplicate or 

belongs to a deceased individual. The Social Security Administration (SSA) provides little 

cooperation to employers trying to combat identity fraud. 

2 
42 

The solution: in addition to documents such as a driver's license or social security card which 

are easily falsified, we believe employers should be allowed to require an E-Verify Self Check. 

The system is already in existence and relies on information that would prevent identity fraud. 

E-Verify Self Check is an online service that allows u.s. employees to check their employment 

eligibility in the United States before beginning a new job. E-Verify Self Check was designed to 

provide confidence that E-Verify results are accurate prior to applying for employment. The 

Self Check "entry portal" (to prove identity before moving to the employment verification step) 

helps prevent identity fraud by melding E-Verify with an automated "Connect the Dots" 

program that pulls data from publicly available records and requires employees to take a test 

based on that publicly available data. Under the current interpretation of the Office of Special 

Counsel for Unfair Immigration-Related Employment Practices, employers may not require 

anyone to use Self Check in the employment process and may not even ask about Self Check. 

Of course not all applicants will be able to successfully complete the self check. They may have 

inadequate information in public data bases. When this is the case, programs must be in place 

to ensure eligible employees are able to appeal the results or address the issue with the 

appropriate government agency in a timely fashion. The Department of Homeland Security 

(DHS) should provide employers with an automatic referral process for these employees. 

Having this system in place will ensure that only legal applicants even apply, and that they 

should have no fear in working with the DHS to get their accurate information into the system. 

The Social Security Administration (SSA) must be required to verify that SSNs are not being used 

in duplicate locations or are not matched to deceased individuals. The Social Security Number 

Verification System (SSNVS) can verify via Internet that employee SSN information matches 

Social Security's records; however, they can currently only be used for tax and wage reporting 

(Form W-2) purposes. It is also limited to matching information that is easily acquired by an 

individual committing identity fraud (Name, SSN, DOB, Gender). Providing employers with the 

additional information of duplicate or deceased SSNs can help stop identity fraud by 

unauthorized workers and also alert authorized employees that they may be the victim of 

identity theft. Employers who discover employees with duplicate or deceased SSN should use 

the same DHS automatic referral process previously described. 

In return for participating in these aggressive screening programs, a safe harbor should be 

provided for employers that utilize the E-Verify Self Check and follow the automatic referral 

process. This safe harbor should insu late an employer from liability unless the government can 

show beyond a reasonable doubt that the employer failed to use these tools in good faith. This 

trade-off is only fair. An employer that does everything possible to avoid hiring unauthorized 

aliens should not be exposed to further liability. At the end of the day, it is the obligation of the 

government - not U.S. employers -- to provide a secure worker verification system. 

Anti-Discrimination 

Employers can often be caught in the middle, between employee verification obligations and 

non-discrimination enforcement. For example, the Department of Justice's Office of SpeCial 

3 
43 

Counsel (OSC) has cited employers for allegedly acting too aggressively in verifying work 

authorization status of new hires. Simultaneously, that same business is often targeted for 

worksite enforcement action for not being vigilant enough. Statistics-based discrimination 

penalties have even been imposed on employers who recruit outside the local community or 

work with the State Department to hire workers with refugee status when our economy is 

creating jobs and qualified Americans are unavailable or unwilling to fill those jobs. This 

situation discourages voluntary compliance and is simply unfair. 

Immigration reform legislation should require that DHS, DOJ, DOL and any other enforcement 

or antidiscrimination agency consult internally and then publish "rules ofthe road" for this twoway street. If an employer follows these rules, there should be no liability for its actions - from 

either the immigration enforcement or the antidiscrimination perspective. 

Access to Labor Pool (General Labor Skilled Visa Program) 

An effective occupational visa system may be the most important barrier to illegal immigration. 

The right visa system with the right screening tools will in effect be a second "virtual border." It 

will prevent future waves of illegal immigration by preserving the available jobs for qualified US 

workers or legal immigrants. The majority of general labor skilled illegal entrants to the United 

States come seeking employment, yet there is currently no clear legal immigration avenue. 

There are very limited permanent visas for general labor skilled workers. The existing 

temporary programs for general labor skilled workers are for seasonal labor only, which does 

not help manufacturers, whose occupational needs are year-round and ongoing. AgJobs 

legislation, as important as it is, does not benefit food manufacturers. 

Training and experience investments, cost of relocation, and finding housing, make any work 

authorization of less than three years not feasible. During times of full employment, when our 

economy is creating jobs and qualified Americans are unavailable or unwilling to fill those jobs, 

employers need access to a pool of legal, general labor skilled immigrant workers. This 

challenge can be particularly acute for employers in rural areas where unemployment rates 

may be lower than the national average. 

Congress must create a general labor skilled immigrant visa for the manufacturing industry to 

recognize that employer needs in industry are permanent in nature, not temporary. Employers 

should have the ability to recruit outside ofthe U.S. and sponsor workers for a defined period 

of time. The process would be much less complex and cumbersome than the professional visa 

process and be created to meet high quantity labor needs. 

A manufacturing visa program should include flexible annual goals or targets for immigration 

that emphasize economic migration, predominantly employment-based migration. These goals 

or targets should be flexible and adjustable, to reflect changing market conditions. The number 

of available permits could be dependent upon local and industry-wide employment data (Local 

Area Unemployment Statistics of the Bureau of Labor StatistiCS.) 

4 
44 

Mr. GOWDY. Thank you, Mr. Brown. 

Mr. Kashkooli. 

TESTIMONY OF GIEV KASHKOOLI, 3RD VICE PRESIDENT, 

UNITED FARM WORKERS 

Mr. KASHKOOLI. Thank you, Chairman Gowdy, Ranking Member 

Lofgren, and Members of this Subcommittee. Thank you so much 
45 

for the opportunity to testify today. I know that from Florida to 

Idaho, you have extraordinary experience here, from Congressman 

Gutierrez to Chairman Goodlatte, the amount of years that you 

have put in, along with Congressman Gowdy and Ranking Member 

Lofgren. It is extraordinary what you have put in, and we really 

do believe we are now in a very special moment. 

My name is Giev Kashkooli. I am a Vice President of the United 

Farm Workers of America. We are honored to speak with you 

today, to share alongside the American Farm Bureau and Mr. 

Brown and Mr. Carr some of the issues that confront American agriculture for agriculture employers and for agricultural workers, for 

farmers and for farm workers. 

America’s farms and ranches produce an incredible bounty that 

is the envy of the world. The farmers and farm workers that make 

up our Nation’s agricultural industry are truly heroic in their willingness to work hard and take on the risk as they plant and harvest the food all of us eat every day. 

But our broken immigration system threatens our Nation’s food 

supply. Thankfully, many of you have devoted many years to help 

fix this, and while our views have diverged in the past from those 

of Chairman Goodlatte, we do not question Congressman 

Goodlatte’s commitment to improving our immigration system for 

agriculture, and we are very grateful for the seriousness with 

which you have studied these issues. 

The UFW and our Nation’s agricultural employers have often 

also been at odds on many policy issues, but we have been working 

diligently to see if we can come to an agreement that would unify 

our agricultural employers and our agricultural workers in the agricultural industry, and we believe we are making progress toward 

that end. We really are in a unique moment to get something done. 

Let me speak a little bit about what is at stake for the women, 

men, and children who work in the fields and do some of what Congressman Goodlatte recently called the hardest, toughest, dirtiest 

jobs. Every day across America, about 2 million women, men and 

children labor on our Nation’s farms and ranches, producing our 

fruits and vegetables and caring for our livestock. At least 600,000 

of these Americans are U.S. citizens or permanent legal residents. 

Our migrant and seasonal farm workers are rarely recognized for 

bringing this rich bounty to supermarkets and our dinner tables, 

and I think that is why, Chairman Gowdy, so many of us were 

struck by the commercial that you mentioned. Most Americans cannot comprehend the difficult struggles of these new Americans who 

work as farm workers. 

Increasingly, however, American consumers are asking government and the food industry for assurances that their food is safe, 

healthy, and produced under fair conditions. 

The life of a farm worker in 2013 is not easy. Most farm workers 

earn very low wages. The housing in farm worker communities is 

often poor and overcrowded. The Federal and state laws exclude 

farm workers from many of the labor protections other workers 

enjoy, such as the right to join a union without being fired for it, 

overtime pay, many of the OSHA safety standards, and in many 

states they don’t even have workers compensation for farm workers. 
46 

Farm workers were excluded from these Federal laws in the 

1930’s, and that is one of the sadder chapters in the history of our 

Nation, the reasons why. Even in California, where we have won 

many of these protections and farm workers get many of these protections, we still have seen dozens of farm workers die over the last 

several years for the simple lack of water or shade working in that 

hot sun. Not everyone is able to work on Mr. Carr’s farm, a farmer 

who is really following the law. Such poor conditions and discriminatory laws have resulted in substantial employee turnover in agriculture. 

So we also want to have a serious discussion about the future of 

the workforce upon which American agriculture and American consumers depend. First and foremost, we seek an end to the status 

quo. Our number one priority is reform of our immigration process 

that includes a workable legalization program for the 1 million or 

more farm workers who are currently working in the fields and 

their immediate family members, with a roadmap toward a permanent resident status, and then to citizenship. 

We believe that the farm workers who harvest our food and feed 

us deserve, at the very least, the right to apply for permanent legal 

status. To the extent a new path is needed to bring professional 

farm workers from abroad to this country, these workers should be 

accorded equality, job mobility, strong labor and wage protections, 

and an opportunity to earn immigration status leading to citizenship. 

We have seen Europe’s failed experiment of second-class legal 

status, and we at the United Farm Workers, we believe that America really is exceptional, like I think all of you do. Our agricultural 

system is just one more example of how America is exceptional. So 

we should honor the new Americans who continue to build our agricultural system as the heroes that they are for our country. 

Now, there are agricultural employers who will need to continue 

to have the security of a contract with farm workers so that they 

can make sure to meet those needs, and we are hopeful that complaints about bureaucracy that we all understand would not justify 

reducing wages and job opportunities of U.S. workers, or eliminate 

wage, housing, and transportation protections. 

We thank you very much. We believe that we can come to a system that can honor our American values and our exceptional agricultural system. 

[The prepared statement of Mr. Kashkooli follows:] 
47 

Statement ofGiev Kashkooli 

3rd Vice President of United Farm Workers of America 

Before the House Judiciary Committee's 

Subcommittee on Immigration and Border Security 

"Agricultural Labor: From H-2A to a Workable Agricultural Guestworker Program." 

February 26,2013 

Chairman Gowdy, Ranking Member Lofgren, and members of the subcommittee, thank 

you for the opportunity to testify today. My name is Giev Kashkooli. 1 am a VicePresident of the United Farm Workers of America. The UFW is the nation's first 

successful and largest farm workers union. We are honored to speak with you today and 

to share alongside the American Farm Bureau and USA Farmers some of the issues that 

confront American agriculture. 

America's farms and ranches produce an incredible bounty that is the envy of the world. 

The farmers and farm workers that make up our nation's agricultural industry are truly 

heroic in their willingness to work hard and take on risk as they plant and harvest the 

food all of us eat every day. 

But our broken immigration system threatens our nation's food supply. Thankfully, 

many of you on this sub-committee are very committed to fixing our broken immigration 

system. And while our views have diverged in the past from those of Judicial Chairman 

Goodlatte, we do not question his commitment to improving our immigration system for 

agriculture and we are grateful for the seriousness which he has studied these issues. The 

UFW and our nation's agricultural employers have also often been at odds on many 

policy issues - but we have been working diligently to see if we can come to an 

agreement that would unify our nation's agriculture industry and we believe we are 

making progress toward that end. We are in a unique moment in our nation's historyand together with a lot of work you on this committee can make the changes we need to 

secure our nation's food supply. 

Let me speak a little about what is at stake for the women, men, and their children who 

work in the fields and do some of what Congressman Goodlatte recently called the 

"hardest, toughest, dirtiest jobs." Every day, across America, about two million women, 

men, and children labor on our nation's farms and ranches, producing our fruits and 

vegetables and caring for our livestock. At least 600,000 of these Americans are US 

Citizens or permanent legal residents. Our migrant and seasonal farmworkers are rarely 

recognized for bringing this rich bounty to supermarkets and our dinner tables. And most 

Americans cannot comprehend the difficult struggles of these new Americans who work 

as farmworkers and their family members. Increasingly, however, America's consumers 

are asking government and the food industry for assurances that their food is safe, healthy 

and produced under fair conditions. 
48 

The life of a fann worker in 2013 is not an easy one. Most fann workers earn very low 

wages. Housing in farmworker communities is often poor and overcrowded. Federal and 

state laws exclude farmworkers from many labor protections other workers enjoy, such as 

the right to join a union without being tired for it, overtime pay, many of the OSHA 

safety standards, and even workers' compensation in some states. Fann worker exclusion 

from these basic Federal Laws in the 1930s is one of the sadder chapters of our history. 

In California, where state laws thankfully provide most of these protections, we have still 

seen dozens offann workers die over the last several years for the simple lack of water 

and shade. 

Such poor conditions and discriminatory laws have resulted in substantial employee 

turnover in agriculture. 

Immigration policy reform can playa role in achieving the aims of numerous federal 

commissions that have addressed the labor needs of agriculture. Let me highlight one of 

these reports for you today. President Ronald Reagan and Congress created the 

Commission on Agricultural Workers. The Commission had 4 members appointed by 

President Reagan; 4 by the Senate President Pro Tempore at the time - Senator Strom 

Thunnond -- and 3 by the Speaker of the House. Their report - the "Report of the 

Commission on Agricultural Workers" in 1992 made recommendations for the 

"development of a more structured and stable domestic agricultural labor market" that 

would "address the needs of seasonal farm workers through higher earnings, and the 

needs of agricultural employers through increased productivity and decreased uncertainty 

over labor supply.,,1 One such recommendation was that "[fJarmworkers should be 

afforded the right to organize and bargain collectively ... " We believe, as the mostly 

Republican authors of the report suggested, that improving wages and working conditions 

and increasing farmworkers' legal protections would help attract and retain current 

workers in the farm labor force and end chronic employee turnover. 

We also want to have serious discussions about the future of the work force upon which 

American agriculture and American consumers depend. First and foremost, we seek an 

end to the status quo of poverty and abuse; we should not continue to treat fann workers 

as second-class workers. Our number one priority is reform of our immigration process 

that includes a workable legalization program for the one million or more farm workers 

who are currently working in the tields and their immediate family members with a 

roadmap first to pennanent resident status, and then to citizenship. We believe that farm 

workers who harvest our food and feed us deserve at the very least the right to apply for 

permanent legal status. 

To the extent a new path is needed to bring professional fann workers from abroad to this 

country, these workers should be accorded equality, job mobility, strong labor and wage 

protections, and an opportunity to earn immigration status leading to citizenship. We 

have seen Europe's failed experiment of second class legal status. We believe that 

I Report ofthe Commission on Agricultur.Ji Workers, Executive Summary, p. xxiv, Washington D.C November, 1992. 
49 

Mr. GOWDY. Thank you, Mr. Kashkooli. 

The Chair will now recognize the Chairman of the full Committee, the gentleman from Virginia, Mr. Goodlatte, for his 5 minutes of questioning. 
50 

Mr. GOODLATTE. Thank you, Mr. Chairman, and thank you all 

for your excellent testimony. 

Mr. Stallman, let me start with you. The fundamental basis of 

your guestworker proposal is a market-driven approach in which 

workers with portable visas could seek agricultural employment 

around the country. I certainly recognize and appreciate the need 

for that. 

However, doesn’t the risk exist that these guestworkers will seek 

illegal employment outside of agriculture? And if that is the case, 

doesn’t your proposal depend upon the existence of a mandatory EVerify to ensure that guestworkers can’t get jobs outside of agriculture? 

Mr. STALLMAN. Yes, we have readily acknowledged that there 

has to be a system and process for monitoring these workers to be 

sure they are meeting the requirements of their work status, and 

E-Verify is definitely a way to do that. 

Mr. GOODLATTE. And I say this not to punish these workers. I 

say this because this is a balance that we are trying to find between the interests of American workers and workers that we need 

because there is a shortage, as Mr. Kashkooli acknowledged. If you 

have 2 million workers in agriculture, and 600,000 of them are 

United States citizens, obviously there is a big need for non-U.S. 

citizens. We would like to get as many U.S. citizens into this area 

as possible, and if it is a market-driven approach where you are 

paid a fair market wage, we would like to see that accomplished. 

But we also need to have a system where people come, and then 

don’t go into other sectors of the economy and compete with U.S. 

workers in areas where they are willing to work and take the jobs 

and undercut the wage rate in that area. That is a separate issue 

from what happens to them long term, and I would argue that 

there will be a number of different ways where people who have 

this opportunity could ultimately find other opportunities. They 

might marry a United States citizen. They might get an education 

and petition for a job that requires more skill, and that is not to 

say that this is not skilled work, but more skill that would enable 

them to qualify for a different type of work with a green card. 

But that is a separate thing from a temporary worker program 

that is needed, and if you don’t have a mechanism to allow them 

to come here, work, send money home to their families and so on, 

you’re going to find that you have a system where you are constantly replenishing a huge number of people, over 1 million a 

year. If they do it for several years, it might be several hundred 

thousand new people a year that you would have to then be providing a green card. 

So we need to have, if we are going to do a broader base, some 

call it comprehensive immigration reform, we need to have a component here that will work for this industry that is not only heavily 

dependent upon these workers, but also heavily competitive with 

international competition. Food can be produced in lots of different 

countries around the world. 

So designing something that works for agriculture is a critical 

part to designing something that works for a solution to this entire 

problem. 
51 

Let me ask you also, Mr. Stallman, do you believe that meat 

processors and fruit and vegetable canners, which are not in the 

fields—they have raised that product, they have harvested that 

crop and now brought it into a processing plant—do you believe 

they also should have access to a new guestworker program? 

That is directed to you, Mr. Stallman. 

Mr. STALLMAN. I am sorry. I thought that was Mr. Carr. We, in 

our proposal, talk about extending our program up the chain for 

basically unfarm packing facilities. When you get into the more advanced food processing and processing facilities, in fact, a lot of 

those entities, particularly in the livestock sector, have not wanted 

to be part of the agriculture program, and those sectors generally 

have a different labor need and different labor conditions than 

what we do on the farm because it is permanent work, for the most 

part it is indoor work. 

Mr. GOODLATTE. Right, but there are certain farm works—for example, if you have a dairy farm, your work is not temporary. It can 

be indoors because those dairy parlors are indoors. So there is sort 

of a transition there between the temporary field workers that we 

definitely recognize, and the traditional H-2A worker program is 

not well-designed, but is it is designed to address, moving to farms 

that produce a product every day of the year, milk in this instance, 

to folks who take that product off the farm and further process it. 

If you visit those facilities around the country, you will find that 

there is a need for workers in that area that may be just as great 

as in the farming area. 

Mr. STALLMAN. We are basically using the current definitions in 

our proposal for what constitutes a—— 

Mr. GOODLATTE. Would you be open to a broader definition to try 

to address this problem from a broader standpoint? 

Mr. STALLMAN. I think I would leave that to those particular industries and those particular entities to come up with that. 

Mr. GOODLATTE. Okay. Well, let me ask Mr. Brown and Mr. 

Kashkooli. 

Mr. BROWN. Thank you, Chairman Goodlatte. As you know, in 

our industry, we look for a more permanent employee. But as far 

as a temporary visa program to help with our labor needs, particularly in times when the economy is doing quite well and it is difficult to attract labor, we would be very open to a new visa category for employees for, say, a 24- to 36-month period. When you 

think of the up-front investment you have made in time and training and the thousands of dollars, we would certainly be open to 

that and support such a move forward. 

Mr. GOODLATTE. Mr. Kashkooli? 

Mr. KASHKOOLI. Sure. I think in terms of dairy, it is clear there 

is a case to be made there. In terms of packing houses, I think we 

are more comfortable with the existing definitions. I think for us, 

there are, in fact, a lot of ways to do this. What is important is that 

there are certain guideposts. There are 600,000 farm workers now 

who are U.S. citizens and permanent legal residents we are talking 

about, we hope. All of us are talking about taking the existing 

workforce who does not have legal status and allowing them to 

earn legal status. 
52 

So the three things in terms of just guideposts is, first, we just 

cannot hurt the job opportunities for those people, and that would 

be true if it was in packing houses as well. Second, we have got 

to therefore be concerned about what does recruitment look like so 

that those people know about the work. And third, we need to be 

learning about wages. 

I have heard that the current wage rates are artificial. We do believe they are artificial. We believe they are artificially low. The 

majority of the workforce doesn’t have legal status, and therefore 

the wages have been artificially depressed in any real market. 

Mr. GOODLATTE. Well, let me just interrupt you there. Do you believe that if we had a system where they had now legal status in 

the United States, whatever that might be, but they had legal status, and as Mr. Stallman describes, they have the ability to leave 

a job where they feel they are being treated unfairly, and they have 

the ability to move from farm to farm without having an H-2A petition filed for each and every farm location, if they had that, their 

wages might well go up, might it not, under a market-driven approach? As opposed to having a bureaucracy trying to figure out 

what that wage should be, which is what we do right now. 

Mr. KASHKOOLI. Right. You may be surprised to know that we 

believe that private citizens acting collectively can be more effective 

than government regulation. 

Mr. GOODLATTE. And I am glad to hear that. I agree with that. 

Mr. KASHKOOLI. Great. I thought so. What President Stallman 

described, actually, sounds right. But the problem here is the written proposal that they have proposed does not do that. In their 

written proposal, there is an ability to tie a worker to a contract 

and have their visa impacted by that contract. So what we would 

be in favor of is two programs, one truly free market, and I want 

to get to that in just a second; and second, a contract program that 

is either H-2A or modeled after the protections of H-2A, which, 

after all, were a compromise originated by President Reagan. 

And for the employers that need the security of knowing that a 

worker needs to show up exactly at that date and for however long 

the season is, knowing the weather variations, they are probably 

going to continue to need to use that contract program and then 

connect themselves to a set of government protections for all of the 

historic reasons that have had to take place. 

On the free market, we think that makes a lot of sense. We want 

to make sure that it is not an artificial free market, so there should 

not be an endless supply of minimum-wage labor. That is not a 

truly free market. It should not be an unlimited supply. So there 

needs to be some kind of cap. There really does need to be portability. A worker really does need to be able to move. They need 

to have equal labor rights. There cannot be an incentive to hire 

that person over the other people who are working in the United 

States, and there needs to be some kind of roadmap to citizenship, 

we believe. 

And the reason is because, as Chairman Gowdy just mentioned 

in referencing that commercial, the people who are harvesting our 

food which we eat every day, it is a euphemism to call them guestworkers. These are the new Americans who are working our land 

and feeding us. That is honorable, sacred, beautiful work. And to 
53 

say to the people who do that work—we believe that the people 

who do that work should be able to, at least at some point, if they 

are not in fact temporary, if they in fact are coming back year after 

year, at least be able to earn the right to apply for legal status. 

Mr. GOODLATTE. Both Mr. Stallman and Mr. Kashkooli offered 

good contributions here to something that needs to be resolved. 

My time has long expired. I think we have a vote pending. 

Mr. GOWDY. I thank the Chairman. 

I would now recognize the Ranking Member, the gentlelady from 

California, Ms. Lofgren. 

Ms. LOFGREN. Thank you, Mr. Chairman. Before asking my questions, I would like to ask unanimous consent to put into the record 

statements from the Western Growers, from Farmworker Justice, 

the Southern Poverty Law Center, California Rural Legal Assistance, Global Workers Alliance, and several others, if I could. 

Mr. GOWDY. Without objection. 

[The information referred to follows:] 
54 

U.S. House of Representati ves 

Statement for the Record at the Commi"e(' OJ! Judiciary, Subcommittee 011 hn!lligratioll 

Policy and Enforcement 

Hearing on" A§icullural Labor: From H-2A to & WOrkable Agricultuml GtJest\\(orkcr 

Program" 

Tom Nassif 

President 3nd CEO of Western Growers 

Tuesday, February 26, 201 J 

200 P [lJ 

l'age l of lO 
55 

Chairman Gowdy, Ranking Member Lofgren and members of the committee, thank you 

for the opportunity to submit the following statement for today' s hearing. Western 

Growers Association is an agricultural trade association headquartered in Irvine, 

California. Western Growers members are small, medium and large-sized businesses that 

produce, pack and ship almost 90 percent of fresh fruits, nuts and vegetables grown in 

California and approximately 75 percent of the fresh fruits, nuts and vegetables grown in 

Arizona. Our members produce in - and directly contribute to the economies of - 29 states 

overall. In total, our members account for nearly half of the annual fresh produce grown in 

the United States, providing American consumers with healthy, nutritious food. 

Agricultural producers across the country want a legal and stable workforce. My statement 

will lay out the importance of agriculture to the U.S. economy, unique concerns and 

challenges the specialty crop industry particularly in the west faces, and the opportunity 

and need to move forward on a solution to the current labor crisis. We are at a critical 

moment in our nation's immigration policy, let's pave a new path forward and not repeat 

mistakes of the past 

Agriculture is Critical to the Health of the U.S. Economy 

With 81,500 farms and ranches, California agriculture is a $43.5 billion dollar industry that 

generates at least $100 billion in related economic activity. Agriculture contributes $10.3 

billion to Arizona's economy. The United States fruit, vegetable and floral industry 

contributes over a half-trillion dollars annually to the nation's economy. 

Not only is agriculture's role in maintaining a safe and secure food supply vital to our 

economic recovery, it is critical to the strength of rural America. Congress' failure to pass 

immigration refonn, combined with a diminishing labor supply, threats due to 1-9 audits by 

ICE, and mandatory E-Verify legislation emerging at the state and the federal levels, it is 

clear that U. S. agriculture will be decimated without a workable mechanism to hire and 

continue to employ the labor we need. The current debate regarding immigration refonn 

provides the best opportunity in years to finally get the solution right for agriculture. 

Page 2 of10 
56 

Demographics of U.S. Agricultural Work Force 

There are about 1.8 million people who perfonn hired fann work in the United States. 

Approximately 1.2 million or more of these people are not authorized to work here. 

Studies demonstrate that for a variety of reasons including the seasonal nature of the work, 

the difficulty of the work, and the unique skill set required for many agricultural jobs, 

unemployed Americans are unwilling to work in the labor intensive agriculture sectorsproduce, dairy, nursery, livestock. The labor force in each of these sectors is 

overwhelmingly made up of foreign born employees. 

In the late 1990's, a multi-county welfare-to-fann work program was launched in 

California's Central Valley. Regional unemployment ran 9 to 12 percent; in some 

localities, unemployment exceeded 20%. State and county agencies and grower 

associations collaborated to identify cropping patterns, labor needs, training, 

transportation, and other factors impacting employment levels. Out of over 100,000 

prospective "welfare to work" placements, three individuals were successfully placed. In 

the aftennath of the program, several employment agencies stated - in writing - that they 

would no longer seek to place the unemployed in seasonal agricultural work because it 

suffered from such a low success rate, and that seasonal agriculture was "not a fit" for 

these individuals. 

In 2010, the United Fann Workers Union launched the "Take Our Jobs" campaign, and a 

media blitz which included national coverage. As of mid October, which generally marked 

the end of the growing season and the campaign, 10,021 people had inquired about jobs in 

the fields, yet only nine people had taken jobs in the fields. Most of them quit after a few 

days. 

Some might be tempted to consider wage rates as an additional factor that might 

discourage unemployed American workers from seeking agricultural jobs, but the facts do 

not bear this out. According to a November 2012 USDA farm labor analysis, wages for 

Page 3 of10 
57 

field workers averaged $10.71 per hour. Piece rate wages in certain commodities can be 

significantly greater. Yet, for a variety of other factors, American workers do not seek nor 

stay in farm jobs, even today with unemployment hovering at 7.8 percent. The fact is the 

majority offarm jobs in this country must be filled by foreign workers. 

Challenges to a Secure, Stable Workforce 

The Immigration Reform and Control Act (lRCA) mandates procedures for employers to 

verify the employment eligibility of their workforce. Failure to comply with lRCA can 

lead to substantial civil penalties and, in some cases, criminal charges. However, 

employers are prohibited from questioning the documents the employee presents if they 

appear to be valid. When U.S. Immigration and Customs Enforcement (ICE) conducts 

workplace audits, the employees' work authorization is scrutinized and run through DHS 

databases, often times with severe consequences for agricultural employers. 

The Obama Administration has made worksite enforcement a priority, substantially 

increasing the number of ICE audits and investigations of employers' work authorization 

practices. In fiscal year 2011, the federal government initiated 2,496 audits of employer's 

1-9 records, up dramatically from past years, and 383 of them received final fine notices 

totaling more than $10 million. Also, criminal charges were brought against 221 owners, 

managers, and supervisors. In fiscal year 2012, ICE initiated over 3,000 audits for the first 

time ever. With offices in aliSO states and more than 20,000 employees, there is no 

indication that ICE will be backing off workplace enforcement any time soon. Although 

egregious actors are most often said to be the intended target of these enforcement actions, 

innocent employers who unknowingly hire unauthorized workers are also the subject of 

immigration enforcement activities which are costly and disruptive. 

Agriculture and food processing are among a select group of industries that are receiving 

the most attention. 

Page 4 of10 
58 

For example, in March of2011, 85 percent of a California wholesale nursery's year round 

workforce had to be tenninated at the peak of their Mother's Day floral season when DHS 

determined their work documents were false. The status quo is not working. 

H-2A Does Not Work 

Right now, the only program we have available to us to secure legal workers is the H-2A 

temporary agricultural visa program. As has been well-documented, it is utterly failing the 

agricultural industry including Western Growers members. 

For example, H-2A is used to address only 2-3 percent ofD.S. agriculture's labor needs. 

And even then, a 2011 nationwide study ofH-2A users commissioned by the National 

Council of Agricultural Employers that was presented to the House Subcommittee on 

Workforce Protections in September 2011, reports that 72 percent of employers had late 

arriving employees, on average, 22 days after the date of need. In 2010, employers in the 

H-2A program reported $320M in losses due to their inability to get the workers they 

needed or to get workers when they were needed. 

The Department of Labor appears, at best, indifferent to agriculture's needs. The Western 

Growers members who farm in Yuma, Arizona hire Mexican H-2A workers who live in 

Mexico and COlmnute to work. Many of these H-2A employees prefer to return home after 

each work day. These employees decline to use the approved housing that is required to be 

provided to them by the growers under H-2A regulations. Despite repeated requests for an 

adjustment to the requirements, the Department of Labor has taken the position that 

employers must mal(e the housing available for the H-2A commuters priur to obtaining 

employer H-2A certification, regardless of whether the H-2A workers intend to use it. 

This imposes a significant cost on the growers without affording any benefit to the 

intended H-2A worker beneficiaries. 

Page 5 oflO 
59 

H-2A does not afford any ability for workers to follow cropping patterns because their 

status is tied to a single employer. In a state like California, produce is a year-round 

business with lettuce being harvested in Salinas in the spring, summer, and fall; berries in 

Ventura county through the summer and fall; tree fruit and table grapes in the San Joaquin 

Valley in the summer months; citrus in the central San Joaquin Valley from late fall to 

early spring; and vegetables in the Imperial and Coachella Valley's during the winter 

months. Additionally, significant production takes place in less rural area, where 

constructing fann worker housing is impossible based on local zoning. H-2A was never 

designed for this type of market 

H-2A is administratively burdensome, implemented ineffectively, and is not responsive or 

flexible enough to meet the labor needs of US. agriculture. 

The Department of Labor also appears to target growers who use H-2A with wage and 

hour investigations. 8 percent of H-2A employers report that they were audited before 

they participated in the program, but 35 percent report being audited since entering the 

program. 

As noted earlier, the H-2A program is used by a small percentage of agricultural 

employers. Weare talking about the need for a program that will work for the remaining 

97 percent of us and the greater than one million people we need to hire each year. 

Americans Understand the Predicament of Agriculture and Support a Solution 

Last year, Westem Growers released a nationwide poll conducted by The Tarrance Group, 

a well known and respected national polling firm. Questions were asked of 1,000 likely 

voters to gauge voter attitudes towards immigration reform with a particular focus on a 

workable program for agriculture. For years, we have made the case that agriculture has 

unique labor needs and needs a solution to address those concerns. Americans, across 

Page 6 of10 
60 

political lines, agree with this assertion. Tn fact, when asked whether they would support 

legislation that includes many of the components agriculture considers important, 70 

percent approved of such a proposal, with 64 percent responding that they'd be more likely 

to vote for a candidate who supported such legislation. 

While many Americans are anxious about the economy and jobs, very few consider 

immigrants that do farm work a cause of unemployment. It is clear that American voters 

aren't caught up in the harsh rhetoric claiming immigration refonn should be about 

punishing hard working farm workers or leaving American family fanners without a work 

force. Americans know that we need a practical and streamlined national program that 

allows immigrants to come out of the shadows to work here on our farms. The fact of the 

matter is that Americans know farm work is and will continue to be done by foreigners, 

and they accept that reality. 

More than 85 percent of survey respondents agree that both creating these legal channels 

for temporary immigrant farm workers and developing the ability to register and track 

them will improve the nation's security and allow for better control of the border. 

Passage of immigration reform legislation with a workable solution for agriculture seems 

like an economic and political no-brainer, providing all employers with certainty about the 

legality of their workforce and at the same time providing stability and certainty to 

agricultural employers. 

Steps Toward A Solution 

Western Growers is a founding member of the Agriculture Workforce Coalition (AWC), a 

historic and broad coalition of agriculture producers representing a diverse group of 

commodities and covering every region of the country. Since its launch in January, the 

A WC membership has continued to grow, with regional groups and particular commodity 

groups adding their support to this critical effort. 

Page 7 of10 
61 

The AWe partners universally agree that we need a new model for our future agriculture 

worker program. Even among those who have used H-2A, there is agreement that this 

program is broken beyond repair. We are pleased that Bob Stallman, President of the 

American Fann Bureau Federation (AFBF), another founding member of the Awe is able 

to testify on the panel today. The similarity between our statements is a testament to the 

unity within our coalition. 

In order to move us closer to a solution to meet our labor needs, we must consider a new 

approach to an employee visa program: one that resembles the current labor market. The 

number of visas would be detennined in a market driven fashion. 

A workable program would also provide farm workers with the same protections as U.S. 

workers with respect to all employment related laws and employment taxes. Thus there 

would be no reason for an employer to prefer a temporary foreign worker over a U.S. 

worker. The perception of such preference is often a criticism levied at temporary worker 

visa programs. In reality, employers generally prefer to hire local workers first rather than 

rely on long distance migrants. 

The program would include incentives for workers to return home after the tenns of their 

visa or work obligations are completed. Additionally, workers' visa status would be synced 

with an E-Verify system, guaranteeing that someone with a visa to work in agriculture 

would not be able to gain legal employment in another sector. Additionally, we would like 

to see this program administered by the Department of Agriculture with enforcement of 

labor laws handled by the Department of Labor. 

It is also imperative for this program to address, not only the need for future employees, 

but also the need to retain our experienced employees, the people who are already here. 

Our fanns could not function without these valuable farm employees; yet most work 

without proper immigration status. Any attempt to address the farm labor problem in this 

country needs to provide a vehicle for these skilled, hard-working and valuable immigrants 

Page 8 of10 
62 

to continue working in agriculture legally. This is critical to ensuring a stable agricultural 

labor force. 

We hope that this Committee and the Congress can quickly come to an agreement on a 

workable solution for agriculture. 

Conclusion 

The labor emergency affecting American agriculture threatens not only farmers and rural 

communities' livelihoods; it puts at risk our stable and reliable food supply. If there are 

indeed 1.2 million or more falsely documented workers in agriculture and they were no 

longer able to work, then the 2 nonfarm jobs that they create in the related economy will 

also be lost. That is a loss of 3.6 million jobs. 

There is a workforce willing to grow and harvest crops, but it exists in other countries. 

Ensuring a stable and legally authorized farm workforce is about growing jobs in the 

United States, promoting economic activity in both rural and urban communities. It's also 

about avoiding a dependency on foreign food supplies. With less domestic production, 

more food will have to be imported, compromising the safety and security of our food 

supply since only 1-2% of imported food is inspected. 

There is not a person in our country that is not connected to this problem. If you eat fresh 

produce, drink milk, grill steaks or purchase plants for your yard, you are benefiting from 

the hard work of a foreign agricultural worker. And do not forget that 90% of those 

working illegally in this country do not work in agriculture. 

I urge the Members of this Committee who are concerned about the survival of agriculture 

in your states to work together and reach out to your colleagues to craft a workable 

bipartisan solution to this important economic issue. 

Page 90f10 
63 

Foreign workers will harvest the produce Americans eat. The question is whether they will 

do so in the United States or abroad. The absence of a workable agricultural labor program 

will answer this question and it will not be in the best interest of America. 

In a Wall Street Journal Op-Ed from last year, 1 wrote about the way Congress worked in 

2006 to create a new program for Major League Baseball to secure foreign-born workers. 

will repeat what 1 said there: 

While the hasehall illduslry can now smooth the wayfbr its workforce, 

American agriculture is ill dire lIeed of the same guest-worker reform. How 

is it {hat elected officials can move with .Ipeed 10 clear the wery fiJr olle 

specialized group o.fforeign lvorkers and notfilld a way to fix a broken and 

ulnvorkable system for another group'! Americans can survive without 

international guest workers who swing a bat, but we would not survi1'e long 

wilhout guesl workers who hand-cUI our fresh vegetahles alldfruil. 

Jfthe president and Congress can find a solution fiJI' baseball, surely they 

callfilld a solution for agricIJ/rure. 

On behalf of Western Growers, 1 am appreciative of this Committee's willingness to 

examine the need various industries have for guaranteeing a legal workforce, including 

U.S agriculture. Thank you for the opportunity to submit this statement. 1 look forward to 

working with the Committee as this process moves forward, and testifying regarding some 

of these issues at a future hearing. 

Page 10 of 10 
64 

Testimony of Farmworker Jnstice 

Before the House Judiciary Committee 

Subcommittee on Immigration and Border Security 

"Agricultural Labor: From H-2A to a Workable Agricultural Guestworker Program" 

February 26, 2013 

Farmworker Justice submits this statement for inclusion in the record of the February 26, 2013 

House Judiciary Subcommittee on Immigration and Border Security's hearing on "Agricultural 

Labor: From H-2A to a Workable Agricultural Guestworker Program." For thirty years, 

Farmworker Justice has engaged in policy analysis, education and training, advocacy and litigation 

to empower fannworkers to improve their wages and working conditions, immigration status, 

health, occupational safety and access to justice. Since its inception, Farmworker Justice has 

monitored the H-2A program throughout the country and analyzed proposals for policy changes. 

Fannworker Justice welcomes efforts to reform the nation's immigration system and seeks to ensure 

that agricultural workers and their families are treated fairly and consistently with our nation's 

democratic and economic freedoms. 

Our nation's broken immigration system, labor laws that discriminate against farmworkers, and the 

labor practices of many agricultural employers have combined to create an agricultural labor system 

that is unsustainable and fundamentally unfair to our farm workers. The resulting turnover in the 

fann labor force means that now more than one-half of the approximately 2 million seasonal 

farmworkers lack authorized immigration status. 1 The presence of undocumented workers 

depresses wages for all farm workers, including the 600,000 to I million U.S. citizens and lawful 

immigrants in agriculture. But undocumented farm workers are not leaving and they are needed. 

Congress should enact legislation that refonns our broken immigration system and creates a 

roadmap to citizenship for the II million aspiring Americans, including farm workers and their 

families. Proposals for anachronistic guestworker programs should be rej ected as inconsistent with 

America's economic and democratic freedoms. Any needed future workers from abroad must be 

afforded the same legal rights as U.S. workers and should be given the opportunity to earn 

citizenship. Immigration reform should be a stepping stone toward modernizing agricultural labor 

practices and treating fannworkers with the respect they deserve. 

The Current Landscape: Greater Protections Needed for Farmworkers 

The treatment of U.S. farmworkers (U.S. citizens and lawful resident immigrants) in this country is 

unreasonable and unsustainable. As in generations past, today's farmworkers experience high rates 

of unemployment and low wages. Poverty among farm workers is more than double that 

experienced by other wage and salary workers 2 Farm work is one of the most hazardous 

occupations in the country, with routine exposure to dangerous pesticides, arduous labor and 

1 Fmdings from the National Agricultural Workers 

ProEle of United S[<l\es Fann Workers, {J\,uilable <l[ '~'~,",',"-,.'-"c'."".'y,~~c'."'h.,,,,~,,,,",,,,"v.'.'""'"""''''_''''''.'.''''".",u.',.,,-,-. 

:2 See Kandel. W. ProEle ofllired Farm\\'orkers, A 

Rese"rch ]'''porl, No 60. July 200S. Available 
65 

extreme heat. Despite these working conditions, farmworkers are excluded from many labor 

protections other workers enjoy, such as many of the OSHA labor standards, the National Labor 

Relations Act, overtime pay, and even the minimum wage and unemployment insurance at certain 

small employers. 

Such poor conditions and discriminatory laws have resulted in substantial employee turnover. Tn 

the absence of an immigration system that functions sensibly to control our borders and to provide 

immigration visas when workers are needed, most of the newly hired farm workers have been 

undocumented. Still, conservatively estimated there are at least 600,000 legally authorized US. 

workers in the agnculturallabor force:' Improving wages and working conditions, increasing 

fannworkers' legal protections, and implementing the other recommendations made by the 

Commission on Agricultural Workers, such as affording farmworkers the right to organize and 

bargain collectively, with appropriate protections, would help attract and retain US. workers in the 

fann labor force.' 

Employers already have an agricultural guestworker program available to then, the H-2A program. 

and its provisions do not need to be expanded because - unlike most other visa programs -- it has no 

limit on the number of guestworkers that may be brought in annually. 

The H-2A program's wage and other labor protections developed over many decades in response to 

U.S. workers' lost job opportunities and depression in wage rates and other job terms under the 

Bracero program and former H-2 program. These past programs and the current H-2A program 

have not only harmed US. citizens and lawful permanent residents, but have taken undue advantage 

of thousands of vulnerable guestworkers. Stronger protections and enforcement are needed. 

The experiences under the Bracero program and former H-2 program resulted in several important 

safeguards that are intended to protect US. workers' jobs and labor standards and prevent 

exploitation of vulnerable guestworkers. These include: 

Minimum wage protections: Under the H-2A program, employers must pay the higher of the 

state or federal minimum wage rate, the local prevailing wage, or the adverse effect wage 

rate (the average wage of nonsupervisory field and livestock workers as determined by a 

USDA survey). Wage protections are necessary for several reasons. First, without them 

US. workers would be competing against job applicants who would be willing to work for 

much lower wages than U. S. workers due to the lower costs ofli ving and lower earnings in 

., Estimates of the number of farnnvorkers va(y depending on the methodology, ranging hom 1. 8 milhon to 2.4 million. 

Vie assume 20 llulhon farmworkers Tf only 30% offarmworkers are citizens or authmized immigranb, then there are 

600.000 U.S. fanmvorkers. Official goyernment statistics indicate a rate closer to 50%, amounting to roughly 1 

million documented farnnyorkers. See Kandel. at App. 2. p. 56. Martin, P., -'IIired F al1l1'ivorkers." Choices Magazine. 

2d Qtr. 2012, http://\.YV';'''i. choicesma gazine .org! choices-l1l3 gazllle/theme-aliicies/inunigration -and -agriculture/hiredfarm -\\lorkers 

~ Reporl of the lomnw'8ion on ,'/griclIltl£ra/ r,vorker8. \Vashillgtoll D,C. NovemhcL 1992, 5,'ee a/8o the testimony of 

Rohert A. \)ihlllams, Director offlmida Legal Scrvices' Migrant l' arm\vorker Justice Projcet, hefore the House 

JudlelaJ}, Comnllttee, suhcomllllttee of TmmlgrntlOn POI1Cy' and Pnforeement, Hennng 011 H R 2R47, the "Amencan 

Act," Septemher 8, 2011 hy reference), Avallahle at 
66 

their home countries. Second, because H-2A workers are tied to their employers by their 

visas, they lack economic freedom to switch employers and are unable to bargain for higher 

wages. Third, under the H-2A program, the employer need not offer more than the 

minimum wage required by the H-2A program even when there are US. workers available 

to accept the job if the wage rates were higher. A worker who asks for a higher wage rate 

can be deemed to be "unavailable for work" and the available job can be filled with a guest 

worker at the minimum required wage. For these reasons, it is necessary to require H-2A 

employers to offer and pay a market-based wage. 

Job preference for US. workers. The longstanding "50% rule" is the principal mechanism 

to give US. workers a meaningful opportunity to obtain jobs with employers who claim 

they need guestworkers to fill labor shortages. The 50% rule requires employers to hire 

qualified US workers who apply for work until the tirst half of the season has elapsed. Due 

to hiring patterns and the nature of agricultural production, which often involves varying 

start times and a gradual development leading up to the peak season, it makes perfect sense 

to ensure that qualitied job applicants are hired even after the first "otliciar' day of work A 

1986 Congressionally-mandated study concluded that the 50% rule served the purpose of 

protecting American jobs and did so with no significant burden to employers. 

Minimum work guarantee. The "three-fourths guarantee" requires the employer to identify 

the planned contract period and then provide working hours for at least % of that period, or 

pay wages for any shortfall. This protection discourages employers from recruiting an oversupply of workers and provides some reasonable minimum earnings assurances for foreign 

and domestic migrant workers who spend the time and resources to travel long distances to 

accept employment. 

• Prohibition against workers paying for jobs. The H-2A program rules prohibit employers or 

their recruiters from requiring workers to pay recruitment fees to obtain employment. 

Frequently, H-2A guestworkers pay for the opportunity to be hired and enter the U.S. in debt 

and desperate to retain their jobs under any circumstances. 

• Housing: Employers must provide housing that meets safety standards at no cost to the 

worker. Long-distance migrant workers, especially those from other nations, have little 

ability to arrange for housing, ensure that housing is safe, or to afford the cost of housing in 

the U.S. 

• Transportation: Workers who complete one-half the season are entitled to reimbursement of 

their in-bound travel costs; workers who complete the season are entitled to their outbound 

costs. Transportation expenses are a large burden for low-paid farmworkers working for a 

few weeks or months. This payment also helps ensure that workers can afford to return 

home. 

Workers' Compensation: Employers soliciting H-2A workers must provide workers' 

compensation insurance for occupational injuries (but not health insurance coverage). 

Unfortunately, even with these protections, violations of the rights of US. workers and guest 

workers by H-2A program employers are rampant and systemic. Included with our testimony is our 

report, No Way to ll'eat a Guest: Why the H-2A Agric:ultura/ Visa Program Fails (L'i, and Foreign 

Workers, Our report explains that the H-2A program's structural flaws create a system in which 

many employers prefer guestworkers over U. S. workers because of several factors, including (i) H2A workers may only work for the employer that obtained their visa, must leave the country when 

their job ends, and must hope that the employer will request a visa for them in a following year. 

Because of their dependence on their employer, H-2A workers are vulnerable to abuse and are 
67 

unlikely to challenge illegal conduct, join a labor union, or demand better job terms; (2) H-2A 

workers typically arrive heavily indebted due to travel costs and recruitment fees and are desperate 

to work to repay their debt; (3) guestworkers will work at the limits of human endurance for low 

wages, while U.S. workers seek more sustainable productivity expectations; (4) the H-2A employer 

does not pay Social Security or Unemployment Tax on the H-2A workers' wages, but must do so on 

the U.S. workers' wages; (5) H-2A workers are excluded from the principal federal employment 

law for farmworkers, the Migrant and Seasonal Agricultural Worker Protection Act; and (6) while 

recruiting in foreign countries, employers select workers based on age and gender, which is illegal 

inside the United States. 

The H-2A workers' restricted, "non-immigrant" status not only deprives them of economic 

bargaining power but also prevents them from acquiring political power and influencing 

government policies that directly affect them. No matter how many years H-2A workers return for 

agricultural work, they never obtain the right to remain in the U.S., become citizens, or exercise the 

right to vote. Government officials represent the interests of citizens, not guestworkers. Thus far, 

relatively few H-2A workers have been able to join labor unions that can represent them in policy 

debates. 

These factors have led to tremendous obstacles for U.S. workers who seek jobs at H-2A employers. 

As our report shows, H-2A employers discourage U.S. workers from applying for H-2Ajobs, refuse 

to hire them or subject them to such unfair working conditions that workers either vote with their 

feet or are fired. Once the one million or so undocumented farmworkers obtain legal immigration 

status and employment authorization, their j ob opportunities and labor standards will need to be 

protected as well. 

The Bush Administration, in its last few days, sought to appease growers by making drastic antiworker changes to the H-2A program regulations, slashing wage rates and job protections for U.S. 

and foreign workers. We commend Former Secretary of Labor Solis for restoring the H-2A 

protections that the Bush Administration unconscionably removed. The restored protections have 

evolved over several decades and were issued in 1987 by conservative President Reagan. For 

example, the principal wage protection requires H-2A employers to recruit U.S. workers using at 

least the average hourly wage paid to nonsupervisory farmworkers in their region, as detennined by 

U.S. Department of Agriculture. The Bush Administration's fonnula was fundamentally flawed in 

several ways. Among other things, it set most H-2A wages at the average of the lowest paid onethird of farm workers in a local area, resulting in pay cuts of $1 to $2 per hour for thousands of U.S 

and H-2A workers. For the 2009 calendar year, our estimate of the total wage loss for all H-2A 

workers was around $121.2 million combined with about $4.7 million in lost transportation 

reimbursement, or about $1,900 per worker, a significant portion of the per capita GDP in many 

Mexican states. 

We also commend DOL's increasingly effective oversight ofH-2A applications, as required by the 

statute, which has led to the rejection of unlawful job terms that discourage U.S. workers from 

applying for H-2A jobs. One example is a contract clause that waives farmworkers' right to bring 

lawsuits for illegal employment actions and requires them to accept arbitration instead. 

Nonetheless, DOL's resources are limited, and, as detailed in our report, violations of basic program 

requirements are rampant, harming both U.S. and H-2A workers. Our report recommends 

strengthening protections and enforcement. 
68 

Many employers' complaints that the H-2A program is unworkable and overly bureaucratic are due 

to a dislike for DOL oversight and the modest standards that are critically important in protecting 

U.S. workers' jobs and labor standards, such as the wage requirements. Contrary to complaints 

about the program, in FY 2012, DOL approved 96.8% of applications. 

Some growers complain about DOL delays in processing their H-2A applications even though they 

caused the delay by submitting illegal job terms. DOL has made many improvements to improve 

the efIiciency of processing applications, including creating an electronic filing system, putting into 

place an H-2A Ombudsman, publishing an employer handbook and public FAQs and corresponding 

with employers by email rather than mail. If necessary to accommodate increased numbers of 

applications, the government could increase program fees and expand its staff. 

It makes no sense to bring in hundreds of thousands of new guest workers - under either the H-2A 

program or a new guestworker program -- when there are already hundreds of thousands of 

undocumented farmworkers, in addition to citizens and documented immigrants, performing 

agricultural work productively. More, not fewer protections are needed to improve farm worker 

wages and working conditions and prevent all too common abuses of farmworkers. 

The Farmworkers of the Future: An Immigration System Worthy of Our Democracy 

The immigration policy debate has always featured demands by powerful agribusiness interests for 

new, exploitative !,'lIestworker programs and devastating, anti-worker changes to the H-2A program. 

The present debate is no exception. We strongly oppose these demands. 

Guestworker programs are anathema to American values not only because they harm U.S. workers 

but because they take advantage offoreign workers by depriving them of economic freedom and 

denying them the opportunity to participate in our democracy. The H-2A program's restrictions are 

not consistent with our nation's commitment to economic and political freedom. Ours is a nation of 

immigrants, not a nation of guestworkers. 

Any program to address future labor needs should meet several criteria: 

1) A roadmap to immigration status and citizenship: ll'future farmworkers from abroad are 

needed, they should have a meaningful opportunity to become immigrants and citizens. While 

some foreign workers may choose to work only seasonally and not remain permanently in the 

United States, they should have the chance to become full-fledged members of the nation that they 

help feed. The H-2A program should be modified to enable its participants to earn immigration 

status and citizenship Farmworkers should also have a meaningful right to live with their family 

members: the United States should not encourage tinnily separations. 

2) Strong and equaJJabor protections: U.S. farmworkers should be included in the same labor 

protections that cover other workers, including the right to join a labor union tree trom retaliation. 

Guestworkers should be covered by those protections as well. Because temporary foreign workers 

hold a restricted status that limits their ability to bargain for better labor standards, strong 

protections are needed to prevent exploitation of foreign workers, beginning with the recruitment in 

their home countries. Strong protections must also preserve U.S. workers' job opportunities and 

prevent depression in wage rates and other j ob terms. Effective government oversight is also 

imperative due to frequent violations of the labor protections in gnestworker programs. 
69 

3) True economic freedom and mobility: Like any other industry, growers should have to 

compete in the marketplace to attract and retain workers by paying competitive wages and 

providing desirable working conditions. Any visa should provide workers with true visa portability 

so they can move among employers and freely bargain for better jobs. 

4) Sensible limits: The H-2A program has no cap on the number of visas that employers may 

obtain each year. It does contain important economic disincentives that discourage employers from 

seeking more workers than they need in an effort to distort the labor market. The H-2A program 

and any program in the future should contain a cap tied to true market needs to ensure that 

employers do not have unlimited access to vulnerable foreign workers that could easily lead to job 

displacement and lower wages for U. S. workers. 

A Practical, Realistic Solution is Possible 

Now is the time to move forward on immigration refonn. Compromise among legislators, 

fannworker organizations and agricultural employers has occurred before and with hard work can 

occur again. Farmworker Justice is committed to immigration reform that empowers fannworkers 

to improve their inadequate wages and working conditions. For today's and tomorrow's 

fannworkers, a roadmap to immigration status and citizenship, combined with strong labor 

protections and economic freedom, is essential to these goals. 
70 

Statement of the Sonthern Poverty Law Center 

Snbmitted to the Subcommittee on Immigration and Border Security 

Committee on the Judiciary 

U.S. House of Representatives 

Febrnary 26, 2013 

Thank you for the opportunity to submit comments on the important issue ofthe H-2A 

temporary foreign agricultural worker program and to supplement the record of the February 26, 

2013, House Subcommittee on Immigration and Border Security hearing on "Agricultural Labor: 

From H-2A to a Workable Agricultural Guestworker Program." 

We welcome the recent efforts to reform our immigration system, but we believe that temporary 

foreign worker programs cannot be the solution to the future flow of immigrants to this country. 

Current guestworker programs are rife with human and civil rights abuses and are contrary to our 

nation's core values of democracy and fairness. The H-2A guestworker program is structurally 

flawed and should not be the model for any future agricultural guestworker programs. 

The Southern Poverty Law Center (SPLC), known for its innovative civil suits against hate 

groups, launched the Immigrant Justice Project (UP) in 2004 to protect the rights and dignity of 

immigrants in the Southeastern United States. In its nine-year history, UP has represented more 

than 10,000 immigrants, including several thousand guestworkers, in lawsuits aimed at 

protecting their workplace rights from wage theft, discrimination, illegal recruitment practices 

and other abuses. 

Last week, the SPLC released a report titled Close to Slavery: Guestworker Programs in the 

United Stares, which provides a comprehensive assessment of the H-2 guestworker program. 1 

This report represents the culmination of thousands of interviews with H-2 guestworkers and 

numerous class action lawsuits filed on their behalf over the past decade. It documents the 

rampant exploitation of foreign workers imported under the H-2 program and describes how this 

program also degrades the wages and working conditions oflow-wage U.S. workers. 

H-2 guestworkers frequently pay thousands of dollars for the opportunity to work in a low-wage 

job in the United States. Upon arrival, they often find themselves subjected to working 

conditions that violate labor and employment law, as well as civil and human rights. Bound to a 

single employer, deeply in debt, and without access to legal resources, H-2 b'llestworkers are 

routinely: 

• Cheated out of wages; 

• Forced to mortgage their futures to obtain low-wage, temporary jobs; 

• Held virtually captive by employers or labor brokers who seize their documents; 

• Subjected to human trafficking and debt servitude; 

Close to ,Slavery: GuestU'orker Programs;/1 the United /)'fates is available at 

http://cdna. splcen!er. org!sites/default/files/downioads/publication/SPLC-Close-to-Slavery -2013. pdf. 

www.splccntcr.org 
71 

• Forced to live in squalid conditions; and 

• Denied medical benetits for on-the-job injuries. 

When b'llestworkers complain about abuses, they often face blacklisting, deportation and other 

forms of retaliation. Moreover, government enforcement of the few protections that H-2 

guestworkers are afforded is limited and often ineffective. As a result, H-2 guestworkers, who 

are lawfully working in this country, rarely have meaningful recourse for violations of their 

rights. 

An SPLC case filed by a class ofH-2A farmworkers illustrates many of the failings of the H-2A 

b'llestworker program. Starting in 2003, the Arkansas-based company Candy Brand brought in 

hundreds of Mexican H-2A workers each year to harvest and pack tomatoes. The workers each 

paid significant sums of money to cover visa and recruitment expenses for the opportunity to 

work for Candy Brand. Some of the workers paid an additional $1,000 in illegal fees to recruiters 

who extorted this payment by threatening to destroy workers' passports or commit violence 

against their families. After they arrived in the United States, Candy Brand routinely paid them 

less than the required Adverse Effect Wage Rate and denied overtime pay to the packing shed 

workers. In addition, the company never reimbursed the workers for their travel and visa 

expenses, as required by law. As a result, over the course of five years, the company cheated the 

workers out of more than $1 million in wages. After reaching a settlement in 2011, workers 

succeeded in recovering $1.5 million in back wages and damages for a class of more than 1,800 

workers. 

Unfortunately, the workers still have not received the money owed to them under the settlement. 

In 2012, Randy Clanton, one of the principle operators of Candy Brand, and now one of the 

operators of the newly formed family business known as Clanton Farms, LLC, the successor to 

Candy Brand, tiled for bankruptcy along with Clanton Farms, LLC. The bankruptcy was filed 

primarily because Randy Clanton was unable to fulfill his obligations to pay the workers 

pursuant to the class action settlement agreement in the Candy Brand lawsuit. Despite the 

bankruptcy filing and ample evidence of worker exploitation presented in the lawsuit against 

Candy Brand, the U.S. Department of Labor continues to certify Clanton Farms for H-2A 

workers. Remarkably, Clanton Farms is still one of the top ten users of the H-2A program among 

employers nationwide. This lack of government oversight is especially unfortunate given that 

SPLC clients who still work at the farm report that the company continues to violate wage-andhour laws. 

Candy Brand is not simply a "bad apple" H-2A employer. The SPLC's longstanding experience 

representing H-2 workers has proven that violations of workers' rights are pervasive in the 

current H-2 program. The program is structurally tlawed and inherently unfair to both US. and 

H-2 workers. It should not be expanded as a solution to the future tlow of immigrant workers to 

our country. Tfthe H-2 program is allowed to continue, it should be completely overhauled. Any 

new guestworker program should: 

1. Use immigrant visas that create a roadmap to citizenship for foreign workers and 

their immediate families so they may eventually become full members of our 

society. 

www.splccntcr.org 

2 
72 

2. De-couple workers' ability to enter the United States from a particular employer. 

Like any other employee, workers should be allowed to change employers 

without sacrificing their visa status. Employers should rely on market forces -

including paying market wages and providing desirable working conditions - to 

attract workers. 

,). De-privatize the foreign labor recruitment market to eliminate fraud, extortion, 

debt servitude, discrimination, and other human rights violations. 

4. Allocate visas to their most productive uses. There are possibilities other than the 

first-come-first-served model we use now - market-based systems, for example. 

5. Ensure employers using a foreign worker program have sufficient capital to pay 

their employees the promised wages and to otherwise comply with labor and 

employment laws. 

For more detailed solutions for reform of the H-2 guestworker program, please see Close to 

Slavery: GuesfWorker Programs in the United States at: 

http://cdna.splcenter.org/sites/defaultlfiles/downloads/publication/SPLC-Close-to-Slavery20 13. pdf 

www.splccntcr.org 
73 

LawOfft05of 

California 

R ural L egal 

A ssistance 

F oundation 

MAIl'OfI1CH 

UI ..... ~'-'.._",. 

~ ... """ . 1"'011_"'" ..... ~'o\J~, 

t:x-..: 

MorkS<l,_ 

--

----"""'-

",,~.Do D'.~"'TO" 

UmONAJ. 

•• OIl'Cf omCU 

-

,,-~,­

<-

...... 

---- '-----

,-..... '-'-

-

_ .. _--- ---_ ---'-- ........ .-- __ I __ _ 

--

__ --.---,,- -_ c 

'

___ 

..... 

-- -'-"-

WEAK LA B OR P ROTECT I ONS , AN D 

I NA D E Q UA T E US DOL OVERS I GHT. 

HAVE LED T O PER S I STENT WORKER 

EX P LO I TATION I N T H E H-2A 

PROGRAM IN CA1- I FORNIA 

\\,R!TT ~~ TESTI~ ONV 

SUBM IT TE D 

TO T Ii E 

SU BCOM M IT r EE 

ON 

I M M IG RATION AN D BO KD ER SECUR IT Y 

COMMITT EE ON T HE JUDICIARY 

U,S. HOUSE OF REPRESENTATIVES 

FOR 'I'I II! IIEr\lUNG 

From U-2A to a Workable Agricultural 

Giles/worker Program 

Febrllary lr:., 1013 
74 

I INTRODUCTION 

The California Rural Legal Assistance Foundation (CRLAF) is a public interest law firm 

representing low wage farm workers in rural California. In the last 30 years we have recovered 

millions of dollars in wages stolen from thousands of workers, including hundreds of thousands 

of dollars stolen from both US and H-2A workers by H-2A employers in California. Our current 

docket includes I pending case where we represent H-2A workers alleging violations of state and 

federal law. We collaborate regularly with legal services agencies that also represent California 

farm workers; they have 2 pending cases representing H-2A workers. 

Our written testimony addresses the recent expansion of the H-2A program at a time when 

California is experiencing historic rates of high unemployment, and outlines continued abuses in 

the H-2A program here over the past dozen years. 

II DESPITE RECORD HIGH UNEMPLOYMENT IN CALIFORNIA, THERE HAS 

BEEN A SHARP RECENT EXPANSION IN THE USE OF H-2A WORKERS 

During fiscal year 2012 (1012011 to 9302012): the US DOL Office of Foreign Labor 

Certification certitied 3,089 H2-A workers for Californial That is a sharp increase from tiscal 

year 2011, where 1,598 H-2A workers were certified by the OFLC2 

Currently, there are at least 1,000 H-2A workers employed in California, and many of these 

workers are laboring in the important winter lettuce harvest in the Imperial Valley and near 

Yuma, Arizona..' This is notwithstanding that, according to the state EDD, 19,700 workers were 

unemployed in Imperial County in a peak employment winter month of December 2012 and the 

otlicial unemployment rate was 25.5%" 

2013 H-2A applications are also pending and/or have already been approved elsewhere 

throughout the state for: lettuce; avocados; vineyards; strawberries; wine grapes; apples; grapes; 

citrus; and lemons. Some of these applications are for summer harvest work in the Salinas 

Valley, where the most recent peak harvest unemployment data (in Monterey County, for June, 

July, August and September 2012) were 5 

Month 

June 

July 

August 

September 

Number of Unemploved 

23,100 

22,500 

21,400 

19,900 

Unemployment Rate 

9.7% 

9.5% 

9.1% 

8.5% 

1 Email to CRLAFfrom CalifomiaEDD, Febmary 21, 2013 

'US DOL ETA. OFLC. FY 2011 AllIuml Rcport'Pcrfonnancc Data 

, Emllil to CRLAF from California EDD, Febmmy 21, 2013: "ForQI FFY 2013. (10/1/2012 to 12/3112012): OFLC 

certifIed I.Om H2-A workers for California." 

'1 State of Califomia. EDD. Rcport ~OOC (MonUliy Labor Force Data for Counties December lOll - PrelimimIy) 

5 Ibid. Report ~OOC (Monthly Labor Force Data for Monterey County. June through September 2012) 

2 
75 

Current unemployment rates for the California's Central Valley--where some growers are 

complaining about a tightening of fann labor supplies--are demonstrative of how little economic 

recovery there has actually been: US DOL recently reported the following unemployment rates 

in San Joaquin Valley counties in December 20126

: 

Fresno County 

Kern County 

Kings County 

Madera County 

Merced County 

San Joaquin County 

Stanislaus County 

Tulare County 

14.9% 

13.5% 

14.4% 

13.9% 

17.2% 

14.5% 

15.0% 

15.7% 

Even during a peak of harvest period last summer, e.g., last AuS'Ust 2012, these same counties 

had the following numbers of unemployed and unemployment rates7

: 

Fresno County 

Kern County 

Kings County 

Madera County 

Merced County 

San Joaquin County 

Stani sl aus County 

Tulare County 

Number of Unemployed 

62,500 

49,000 

8,500 

8,500 

17,200 

42,800 

34,100 

31,000 

Unemployment Rate 

14.0% 

12.7% 

13.5% 

13.0% 

15.8% 

14.2% 

14.5% 

15.0% 

Clearly, the recent upward trend in certifications and the growing diversity of crops 

employing H-2A workers suggest that in California and, indeed elsewhere, this program 

needs little additional change to make it "workable" for agricultural employers." 

111 RECENT DOCUMENTED ABUSES IN THE H-2A PROGRAM IN CALIFORNIA 

ARGUE FOR STRONGER, NOT WEAKER, LABOR PROTECTIONS 

Monitoring of H-2A applications in California by CRLAF, CRLA, Inc. and UFW over the last 

dozen years has demonstrated a persistent pattern of application deficiencies --not identified or 

acted upon by US DOL-- and employment practices that violate the H-2A Act and regulations, 

federal labor protections and California recruitment, minimum wage, overtime and housing laws. 

"US DOL Bureau of Labor Statistics. News Release I 3-265 SAN (Febmary I J, 20 I 3) 

, State o[ Califonria. EDD. Report ~OOC (MonUliy Labor Force Data [or Counties August 2012 - Revised) 

8 According to the OFLes 2012 Alllluai Report pA6, in FY 2011 a totai 0[83.844 H-2A agricultural labor 

positions were requested Il1tionwidc and a Iota] or 77,246 \-vere ccrtiricd. 

3 
76 

Our experience shows that the "burdensome provisions" that growers complain about are the 

only wall of protection between H-2A workers and indentured exploitation. Violation of these 

basic worker rights have resulted in significant hardship for H-2A and U.S workers and have 

displaced hundreds of documented U.S. workers from work they have perfonned for decades. 

Increased use of H-2A workers in San Diego County has provided an unfair advantage to 

growers who can impose production standards that are higher than local practice by simply 

requiring that all crew members "keep up" and driving the H-2A workers -- who are primarily 

men in their 20s -- to work harder, faster and carry greater weight than mixed crews of men and 

women ranging from their late teens to their 40's. 

Growers in the Imperial Valley have recruited and hired documented workers living along the 

border near Calexico, California for work in the broccoli, cauliflower and lettuce fields in 

Imperial, Riverside and Yuma counties for more than 25 years. Over the last 3 years more than a 

thousand of these workers were displaced and replaced by H-2A workers housed in Yuma, 

Arizona. Meanwhile, as noted above, the unemployment rate in Imperial County hovers at 25% 

even during the peak employment periods during the winter months. 

Since 2000, a number of actions have been filed against H-2A employers on behalf of H-2A 

workers and U.S. workers alleging signiiicant violations of the H-2A regulations or contract and 

federal and state labor and housing protections 

• Correa, et al. v. SAM CO, et al. Ventura County Sup. Ct. Case No CIV 2 I 4493 

In 200 I, SAMCO received an H-2A certification for citrus workers for the 2001 -2002 season. 

Domingo Correa and several other workers were recruited by SAMCO representatives in 

Hermosillo Mexico where they were told they would have work from February, 2002 through 

June 30, 2002. Each H-2A worker incurred transportation expenses of $400-$500 to travel to 

Ventura County, and were told that those expenses would be reimbursed. Once they arrived in 

the US they were provided a written contract that offered work only through mid-April --

reducing their work period by two and one-half months. When they began work they were told 

they had to meet a production requirement that was not disclosed to them during recruitment or 

included in the H-2A job order. 

One by one many of the H-2A workers, including Domingo Correa were terminated because 

they could not meet the production requirement. They were not reimbursed for the transportation 

costs, which meant that during the first week of work they were not paid the federal minimum 

wage. Most were never fully reimbursed for those costs. While at work they were supervised by 

abusive foreman who put them under constant pressure to meet the unlawful production 

standard. They were denied meal and rest periods, or found it impossible to take them and meet 

the production standard. Several workers became ill but were provided no access to medical care, 

despite the fact that they lived in a labor camp and had no personal transportation 

4 
77 

When work ended, either as a result of being fired, or the end of the season, the workers had not 

earned at least three-fourths of the contract amount and SAMCO did not pay them that amount. 

10 of the H-2A workers sued SAMCO in 2002 after nearly three years of litigation they 

successfully settled their case for $75,000 and finally received reimbursement for the lost wages 

and out of pocket expenses they incurred. These experienced farm workers were interviewed 

after their case was resolved and characterized their experience as the worst treatment they had 

ever been subjected to working in the U.S. or Mexico. 

• Urias Lozano et al. vs. Harry Singh & Sons et al. USDC So. Dist CA, Case No. 02 CV 

2075 K 

In late August of 2002, Eusebia Urias Lozano and approximately 80 other U.S workers from 

Imperial County were hired by Harry Singh & Sons for the 2002 tomato harvest, which would 

have lasted into December of that year. Lozano had worked for Harry Singh & Sons during the 

2001 tomato harvest. They were paid minimum wage at $6.75 per hour and provided 

transportation to the tields which were several hours away in San Diego County. Unbeknownst 

to Lozano and the other workers, Harry Singh & Sons had submitted an H-2A application and 

certification of 200 H-2A workers was granted by U.S. DOL for the same harvest, from 

September 26-December 15, 2002. The AEWR at that time was $8.02 per hour and Harry Singh 

& Sons were to provide housing to the workers under the terms of the order. 

As soon as the H-2A workers entered the country, Harry Singh & Sons terminated Lozano and 

the other 80 U.S. workers. These workers were never otTered housing, never paid the AEWR and 

certainly were not paid the three-fourths guarantee. Lozano and others filed suit and District 

Court Judge Judith Keep issued a temporary restraining order and preliminary injunction against 

Harry Singh & Sons directing that the U.S. workers be offered work at the AEWR and provided 

housing, if requested. 

During the investigation, it was discovered that dozens of other documented U.S. workers were 

referred to Harry Singh & Sons for this harvest, but were rej ected by Harry Singh & Sons. 

Litigation was filed that resulted in a settlement of $68,000 (which represented payment to 

workers of the difference between the AEWR and the minimum wage they were paid). They 

also received the right to reinstatement, if they chose to live in the housing provided to the H-2A 

workers. However, the H-2A program had done its damage. Harry Singh & Sons stopped 

recruiting, hiring and transporting workers from the Imperial Valley, even though they had been 

doing so for several years. Imperial Valley workers who chose not to relocate from their homes 

and families to live in barracks housing were denied employment because the company stopped 

providing bus transportation. They were displaced by H-2A workers that season and in several 

subsequent seasons. 

5 
78 

• Zepeda v. Global Horizons U.S. District Court EDCA, Case No.1 :01 CV-01599 

In AUh'llst of 2003, Mede Zepeda was living in Kings County and was out of work. He used the 

job service system to identify work available with Global Horizons, a farm labor contractor, for 

work in Bakersfield, California. He received a referral from Employment Development 

Department (EDD) and contacted Global Horizons. Pursuant to the job order he was offered 

work at the AEWR of $8.44 per hour, free housing and employment trom August 8, 2003 

through April 30, 2004. He accepted and relocated to Bakersfield to accept employment. 

He and approximately 30 other workers were housed at a local motel and put to work. But 

Zepeda was not provided meals, had the cost of the housing deducted from his wages and was 

never paid the AEWR rate. His work week went from 30-40 hours a week to 15 hours a week, 

some of it spent washing cars. After six weeks he was told there was no more work. He was 

never paid the three-fourths guarantee. Subsequently, Mr. Zepeda filed suit in 2006 and, after 

extensive litigation, Zepeda's case was settled for $8,000.00 We estimate that as many as 30 

other workers were owed this much or more. 

• Acuna v. Fresh Harvest, Monterey County Superior Court 

Roberto Acuna was an experienced lettuce worker out of work and seeking employment through 

the job service office of the California EDD in Delano, California. In April of 2006 he applied 

for a job with Fresh Harvest, who was advertising through the job service system as a condition 

of its pending application for H-2A workers in Monterey County. With the assistance of EDD 

Acuna was able to get and interview and was offered employment at the advertised AEWR rate, 

and free housing. 

Based on that offer, Acuna traveled to Monterey County ready to accept his new job and move 

into his housing. When he arrived he was told there was no work for him, and to check back 

later. He persisted and was ultimately offered work starting six weeks after his promised start 

date at a rate of pay $1.75 less than the AEWR and with no housing. 

Mr. Acuna tiled litigation and successfully resolved his case against Fresh Harvest for $8,000. 

Several other U.S. workers had the same experience but chose not to pursue claims against the 

company. 

• Salinas de Valle v. Sierra Cascade Nursery Inc. Superior Court, Siskiyou County, Case 

No. SC CV 06-0001378 

In 2006 legal services attorneys were contacted by a community member in remote Siskiyou 

County and told that a group of workers from Mexico were being housed in substandard housing 

and subjected to terrible working conditions, and needed help. 

Upon investigation, it was discovered that an H-2A certification for 730 workers had been 

granted to Sierra Cascade. Those workers were recruited trom Mexico and brought to Tule Lake 

6 
79 

to perform work in strawberry nurseries. Workers were housed in mixed sex barracks, with only 

a curtain between the men and the women in overcrowded and substandard conditions that 

lacked adequate heat, lighting and toilet facilities One female worker reported that she was 

sexually assaulted. The meals provided were inadequate. 

Shortly after they began work they were advised that if they did not meet a production 

requirement they would be sent back to Mexico. Although production incentives were explained 

during recruitment, workers were never told they could be terminated for not meeting any 

particular standard. 

The work was difficult and performed in frigid conditions and some workers became ill. They 

worked hours for which they were not paid, did not receive their meal and rest periods, and were 

not reimbursed for their travel expenses. Within weeks, many workers were being put on a bus 

and returned to Mexico because they could not meet the production quota. They were not paid 

the three-fourths guarantee when they were terminated, and were not immediately paid all wages 

due as required by California law. 

Several workers filed suit and obtained an immediate temporary restraining order requiring that 

the employer bring the housing into compliance with heating and spacing requirements and to 

provide meals meeting federal nutrition standards. The lawsuit was ultimately settled for more 

than $300,000.00 and included injunctive relief requiring compliance with H-2A recruiting, 

transportation and pay requirements, and guaranteed minimum housing standards. 

Job Service Complaint against E.C.Labor 

In 2008, E.c. Labor was granted an H-2A certification for 150 workers. Several US. workers, 

including Francisco Ornelas and Salvador Rosas applied for jobs through the EOO job service, 

but were not hired. After the complaint was filed and investigated it was discovered that several 

other US. workers had applied but not been hired. The company ultimately otTered work to the 

complainants and other U.s workers only after filing of the complaint. 

• Lopez Rodriguez et al. v. SGLC et aI., USDC Eastern District of California, Case No. 

2:08-CV-0971-MCE-KJN 

In 2008, SGLC, Inc., a fann labor contractor, with the assistance of four growers, submitted an 

application for H-2A workers to perform work in several ditTerent crops over the course of six 

months. The application was approved for 200 workers. 

SGLC and grower representatives held recruitment meetings in Colima, Mexico and made job 

otTers to workers. Workers incurred visa and travel expenses to come to the US. that were not 

reimbursed during the first week of work As a result they earned significantly less than the state 

and federal minimum wages due for the first weeks of work. From the day they arrived, workers 

7 
80 

complained that the housing provided was substandard, and the FLC was ordered by the housing 

inspector to correct a variety of issues. Workers also reported inadequate meals. 

For a variety of reasons, SGLC was not able to provide regular full-time work for all of the H-2A 

workers. Many sat idle for days, earning no money but still responsible for paying for their 

meals. Some of the growers that had provided support for the H-2A application refused to allow 

the H-2A crews to work in their fields Dozens of the H-2A workers quit and were forced to 

return to Mexico because they couldn't afford to go without work. Others stayed until the end of 

the contract period, but still did not earn the three-fourths guarantee, and were not paid that 

amount when the contract ended. 

Forty-five workers filed suit in federal court claiming violation of their H-2A contract and 

various federal and state labor and housing violations. Another 25 workers opted into the lawsuit 

after the court certified an opt-in class under the FLSA. In 2012, the workers settled with two of 

the grower Defendants for $320,000. The action against the FLC and two remaining grower 

Defendants was set for trial in January of2013. However, the U.S. District Court judge refused 

to grant Plaintiffs' motion to present representative testimony and indicated that all remaining 68 

workers would have to personally testify at trial. Of course, most of the workers had returned to 

Mexico as required by their temporary visas and H-2A workers have no right to return to the 

U.S. to pursue their claims. Accordingly, the trial court continued the trial to January of2014 to 

allow Plaintiffs the opportunity to seek review of the decision disallowing representative 

testimony and to pursue the tourist or humanitarian parol visas necessary to get all 68 workers 

into the country for trial. 

• Rodriguez v. Fernandez Farms Incorporated, Monterey County Superior Court No. 

Ml14478 

Fernandez Farms Incorporated obtained H-2A certifications for strawberry workers in the 

Salinas Valley for 2009,2010,2011 and 2012. 

In 2010, Oscar Rodriguez Chavez was recruited by Fernandez Farms from Michoacan, Mexico. 

He was hired and obtained one of the 200 H-2A visas issued for Fernandez Farms 201 I job 

order. Rodriguez paid several hundred dollars for his visa and travel expenses to come to Salinas 

to accept the work. Those costs were not reimbursed during his first weeks of work. 

Under the tenns of the H-2A Order, he was to be paid $10.3 I per hour, but was paid a piece rate 

instead that resulted in gross pay that was less than the state or federal minimum wage. He was 

not provided all meal and rest periods, or paid the overtime rates applicable under California law. 

Rodriguez worked under these conditions for several months, but became ill due to the working 

conditions and had to quit. He was not paid all wages owed to him or reimbursed for his 

expenses. He filed suit on October 6, 2011. He knew that the other H-2A workers had been 

8 
81 

subjected to similar treatment, but could not persuade any of them to join him in the action 

because many were fearful of retaliation and had been promised H-2A visas for the next year. 

Subsequently, however, twelve additional workers came forward and are now seeking leave to 

join the lawsuit to raise similar complaints for the 2009, 2010 and 2012 contract periods, 

including the claims for reimbursement for the $1,200 to $1,650 they were told they had to pay 

for their jobs. Additionally, unlike Rodriguez, these workers were provided the housing 

guaranteed under the H-2A order, but were charged for that housing in violation of the H-2A 

contract and regulations. 

• Vilcapoma v Western Range Association et al. Imperial County Superior Court, Case 

No. EDU07266 

Ronal De La Cruz Vilcapoma was recruited by Western Range Association in Peru in 

2009 to perform work as a sheepherder (under the special H-2A sheepherder provisions for a 

visa renewable for up to 3 years). While still in Peru he was told that he had to pay $650 for his 

job, which he did. He then was placed at a sheepranch in Brawley, California managed by 

Martin R. Auza, Jr. While there he was required to perform non-sheepherding work, but paid at 

the sub-minimum sheepherding wage for all hours worked and was not paid applicable overtime. 

He was also denied meal breaks required by California law and was not paid all wages due when 

he terminated. 

In 2012, Vilcapoma sued Western Range Association and Martin R. Auza, Jr., both of whom 

claim that they are not his employer even though he was recruited by Western Range 

Association, and worked directly under the control of Martin R. Auza. Instead, the Defendants 

are claiming that Martin Auza, Sr., who is located in Yuma, Arizona, is his employer. 

IV. APPARENT VIOLATIONS OF THE H-2A PROGRAM EVIDENT IN REVIEW OF 

RECENT AND CURRENTLY PENDING H-2A APPLICATIONS IN CALIFORNIA 

• Applications frequently include provisions that violate California law, and we believe 

they would have been approved by US DOL if not brought to the attention of the 

certifying agency by CRLAF or other legal services advocates. These include: 

A. Meal charges that exceed the daily maximum provided by California law 

B. Provisions requiring reimbursement for damaged tools, equipment or housing 

from worker wages in violation of California law 

C. Descriptions of wage statement disclosures that fail to meet the requirements of 

California law, including the requirement that each grower for whom an FLC 

provides labor be identified on the wage stub. 

9 
82 

D. Failure to h'llarantee pay for required travel or waiting time that is compensable 

under California law. 

E. Rest period guarantees that don't comply with California law. 

F. Workers required to provide their own gloves or other necessary tools in violation 

of California law. 

When these issues were brought to the attention of the Office of Foreign Labor Certification 

(OFLC) in connection with several recent orders, the OFLC replied by saying "These are matters 

that should be directed to the Division of Labor Standards Enforcement with the State of 

California,,9 

• Applications Include Provisions that Violate H-2A requirements 

A. Meals are not provided by the H-2A employer, but by a private vendor and the 

employer is not required to guarantee that three meals a day will be available for 

purchase at less than the daily maximum amount. 

Applications Include Payor Practices that Do Not Comport with Prevailing Practices 

A. Avocado workers are required to be able to carry 80 lb. bags while the prevailing 

practice is 60 Ibs. They are also expected to use 9-12 foot picking poles while the 

standard is 6-10 feet; and they are expected to climb ladders up to 40 feet high when 

the standard is 28-32 feet (with occasional use of32 foot ladders). 

B. Group or Crew incentive standards are included in the Order and then used as a 

production requirement when workers "can't keep up" and are therefore terminated. 

C. Offering work for 30 to 40 hours per week during peak harvest periods when the 

nonnal work week would be 50 to 60 hours per week. This has the effect of 

dissuading U.S workers from applying, since they have no reason to believe they will 

have full time work, it also artificially deflates the three-fourths guarantee and makes 

it possible for FLC's and others to leave workers idle for days and even weeks but 

still make the three fourths guarantee over the contract period by working regular 

weeks. 

D. Artificial combining of worksites and elimination of traditional recruiting 

practices that result in the displacement of U.S. workers. For several years, Tanimura 

& Antle, like other Imperial Valley growers, recruited workers in Calexico and 

transported them to the fields around Brawley, Yuma and Holt, California. Over the 

last several years, these workers have been displaced by H-2A workers who are 

, Letter from William L. CmIson, Administrator, OfLC. to Cynthio L. Rice, doted December 27, 20]() 

10 
83 

housed in Yuma, Arizona. Many impediments are placed in front of U.S. workers 

who would take the jobs, even ifit meant moving to Yuma. 

-- Recruitment is no longer done in Calexico in a change to what was a 20 year 

recruitment practice. Although this has been repeatedly brought to the attention 

of Ofilce of Foreign Certification, they refuse to require daily recruitment during 

the 50% period, and have not required any demonstration of effective recruitment 

efforts in Calexico. 

-- Workers who want to apply for work must do so, through EDD and then be 

interviewed in person, in Bard, California, 65 miles from Calexico. Despite the 

fact that the 2011 Foreign Labor Certification Manual for H-2A Employers 

provides that employers must conduct interviews "by phone or provide a 

procedure for the interviews to be conducted in the location where the worker is 

being recruited at little or no cost to the worker" the OFLC allowed Tanimura & 

Antle to require that former Tanimura & Antle workers from Calexico to travel to 

Bard -- at their own expense -- in order to be interviewed and have an orientation 

for jobs they had held for several years. As a result, some workers who had no 

personal means of transportation were deniedjobs 

In conclusion, the foregoing summary of recent labor law violations in the H-2A program 

represents only a fraction of what is likely occurring in California or, indeed, throughout the 

country. The abuses of this exploitative program are well-documented and the CRLA Foundation 

urges the Congress to follow the recommendations made by both the United Farm Workers 

Union and Farmworker Justice to both strengthen its protections for workers and to also increase 

legal accountability of unscrupulous H-2A employers. 

Mark Schacht 

Deputy Director 

CRLA Foundation 

5/0-S/2-539 

markschachf@icloudcom 

Respectfully Submitted 

11 

Cynthia L. Rice 

Litigation Coordinator 

CRLA Foundation 
84 

Written Statement of Cathleen Caron 

Executive Director 

Global Workers Justice Alliance 

www.globalworkers.org 

Committee on the 

Judiciary Subcommittee on Immigration 

Policy and Enforcement 

Hearing on "The H-2A Visa 

Program: Meeting the Growing 

Needs of American Agriculture?" 

Wednesday, April 13, 2011 
85 

Statement of Cathleen Caron, Global Workers Justice Alliance 

Hearing on "The H-2A Visa Program: Meeting the Growing Needs of American Agriculture?"-

Wednesday, April 13, 2011 

Global Workers Justice Alliance ("Global Workers") combats worker exploitation 

by promoting portable justice for transnational migrants through a cross-border 

network of advocates and resources. Global Workers believes that the concept of 

portable justice, the right and ability of transnational migrants to access justice in 

the country of employment even after they have departed, is a key, under addressed 

element to achieving justice for today's global migrants. Global Workers' core work 

is to train and supportthe Defender Network, comprised of human rights advocates 

in migrant sending countries, to educate workers on their rights before they 

migrate, to work in partnership with advocates in the countries of employment on 

specific cases of labor exploitation, and to advocate for systemic changes. We 

currently operate programs in the United States, Canada, Mexico, and Guatemala 

and regularly provide advice and referral for cases around the world. 

In this brief statement, Global Workers will limit its comments to two discrete 

issues: 

1. Discrimination based on age and gender in the H-2A program. 

2. DOL Over-certification resulting in a labor surplus offoreign workers. 

A startlingly fact ofthe H-2A program today is that the public or Department of 

Labor does not know the composition of the workforce (age or gender) or how 

many H-2A visa workers actually end up employed at the job site. For a country 

concerned about security, the lack of information on how our H -2A program is 

operated is astounding. 

Simple, low-cost, steps encouraged by Congress will shed light on these issues and 

enable us to craft informed solutions which, will improve the H-2A program for 

employers and workers alike. 

Lack of Data Allows Age and Gender Discrimination to Flourish in H -2A 

Program 

H-2A workers are mostly men under forty years of age. 1 Although anecdotes 

abound that women and older men are discouraged from applying during the 

overseas recruitment process, no data is publicly available to reveal the composition 

ofthe H-2A work force. Discrimination hurts U.S and foreign workers as well as U.S. 

employers who abide by the law but are undercut by cheating competition. 

1 See e.g, Reyes·Gaona v. N.C. Growers Association, 250 F. 3d 861, 863 (4th Cir. 2001) (noting that 

men over forty need not apply unless previously employed by company). 

2 
86 

Statement of Cathleen Caron, Global Workers Justice Alliance 

Hearing on "The H-2A Visa Program: Meeting the Growing Needs of American Agriculture?"-

Wednesday, April 13, 2011 

Only one ofthe three agencies involved in the H-2A process requests data on 

individual workers, the Department of State (DOS). The Department of Labor (DOL) 

asks employers for the numbers of aliens they seek. The Department of Homeland 

Security (DHS) asks the employers in which countries the employers will recruit the 

H-2A workers. It is only the third and final step, which occurs at the U.S. consulates 

that personal data for the H-2A applicants is requested in order to process the 

individual visas. 

From interviews with consular officials in the field, I have been told that the 

consular databases have fields for gender and age (birth date ) but those fields are 

not searchable. That means DOS cannot easily run a report to indicate the gender or 

age of H -2A visa holders. The challenge, therefore, is not the lack of data, rather the 

manner in which the database is maintained. A review of individual H-2A visa 

applications is a time consuming and costly endeavor. However, a solution is to 

make more fields in the database searchable, a seemingly simple technological 

adjustment. DOS should then publish the information annually on its website. 

Baseline data on the composition ofthe H-2A workforce will either support worker 

advocates anecdotal evidence that H-2A employers seek only men under forty or 

not. Without this baseline data is it difficult to argue one way or another. 

The U.S. cannot and should not operate a H-2A worker program that unlawfully 

excludes potential employees during the overseas recruitment process. U.S. 

workers are hard pressed to compete with an H-2A workforce selected on a 

discriminatory basis. With the data on the composition of the H-2A workforce, 

employers, workers, and advocates can discuss the significance and seek possible 

solutions. 

Over-Certification Of H-2A Workers Results In an On-Demand Labor Surplus 

DOL certifies the number of aliens a U.S. employer is allowed to seek through the H2A program. However, DOL never knows, because it does not ask, how many 

workers were ultimately employed. Anecdotal evidence suggests that U.S. 

employers sometimes exaggerate the need to DOL so it certifies many more aliens 

than are actually needed. Say for example, Employer X states that it needs 1,000 

workers. DOL verifies that the requirements for recruiting U.S. workers have been 

met and certifies 1,000 workers. But maybe Employer X only needs 500 workers. 

By receiving permission to bring in more workers than needed, the employer has 

created for itself a foreign labor surplus. This means that if H -2A workers complain 

about working conditions or become sick, the employer can easily send them home 

and bring in new workers. The fear to complain about poor labor conditions means 

that the labor standards on farms will continue to decline, resulting in farm jobs 

even less attractive to U.S. labor. 

3 
87 

Statement of Cathleen Caron, Global Workers Justice Alliance 

Hearing on "The H-2A Visa Program: Meeting the Growing Needs of American Agriculture?"-

Wednesday, April 13, 2011 

ffu.s employers were certified only for the number of workers they truly needed-a 

true labor assessment-the whole dynamic changes. H-2A workers would not be 

easily disposable because the U.S. employer would not have the time to go through 

the H-2A process quickly enough to bring in replacement workers. The result is that 

U.S employers will have to recruit local workers to fill those jobs. It also means that 

H-2A workers are more valuable to the U.S. employer. That will result in a more 

secure H-2A work force that may feel more empowered to complain about poor 

working conditions. 

There are various ways to shed light on to this practice. One way is for DOS to 

publish the information it already collects. DOS knows how many workers were 

issued H-2A visas under which employer. This information should be published on 

the DOS website annually and provided to DOL. DOL should use this information as 

it engages in the certification process for the following year. If DOS data reveals that 

Employer X had many less than 1,000 H-2A visas issued under its name, it can 

engage in a discussion of why DOL should certify 1,000 in the present year. Of 

course, labor need changes. But if the employer cannot justify the higher need, than 

DOL should certify only what is actually needed, not a labor surplus. 

Another approach is for DOL to start asking employers for past data during the 

certification process. The advantage ofthis approach, is that DOL can review payroll 

records to determine how many H-2A workers were ultimately employed, a more 

exacting number than DOS's number of visas issued. This information could also be 

used to address another common abuse ofthe H-2A program, that petitioners 

provide H-2A workers to other employers, and do not end up employing the 

workers themselves. 

In conclusion, thank you for considering these very narrow, yet significant, issues 

about the H-2A program. As stated, some seemingly easy, low-cost changes could 

provide us very meaningful information so we can improve the H-2A program. 

4 
88 

MAFO 

Friday, February 22, 2013 

Statement of MAFO, Inc. 

Submitted to the Immigration and Border Security Subcommittee of the U.S. 

House of Representatives Committee on the Judiciary 

February 26, 2013 Hearing: 

"Agricultural Labor: From H-2A to a Workable Agricultural Guest Worker 

Program." 

MAFO, Inc. submits this letter to supplement the record of the February 26, 2013 

House Judiciary Subcommittee on Immigration and Border Security hearing on 

U Agricultural Labor: From H-2A to a Workable Agricultural Guest worker 

Program." 

Most of our MAFO members, if not all, have been farmworkers in our early lives. 

We understand the plight of fannworkers, i.e. the poor working and living 

conditions derived from temporary agriculture employment, since we have 

endured and lived it. Some of us have also been around since the 'Bracero 

Program and have witnessed the misery from that era and that type of 

importation of workers. The working conditions and wages have not improved 

much in 50 or more years. And, today's' H-2A program has not helped. 

We welcome efforts to reform our immigration system but we wish to ensure 

that agricultural workers and their families are included in any immigration 

legislation rather than having a disastrous, separate system that is not consistent 

with our nation's democratic and economic freedoms. We write to express our 

views about immigration policy and the H-2A temporary foreign agricultural 
89 

worker program, which is the subject of the Febmary 26, 2013 hearing before the 

House Subcommittee on Immigration and Border Security. 

Undocumented farmworkers and their immediate family members should be 

granted a reasonable and prompt opportunity to earn legal immigration status 

and citizenship. More than one-half of the farm labor force-over one million 

current agricultural workers -lack authorized immigration status. An earned 

legalization program would help ensure stable, productive farm labor, and fair 

treatment of the people who help put food on our table. 

The H-2A temporary foreign agricultural worker program provides agricultural 

employers with the opportunity to gain an unlimited number of visas to hire 

seasonal farmworkers each year. While the H-2A program's wages and other 

labor protections have been developed over many decades in response to the 

problems experienced by temporary workers, many U.s. farmworkers have 

experienced the lost of job opportunities, as well as opportunities for year round 

employment. Programs such as the H-2A, more often than not depresses wage 

rates. Past guest worker programs and the current H-2A program have not only 

harmed U.S. citizens and lawful permanent residents, but have taken undue 

advantage of thousands of vulnerable people. 

Stronger protections and enforcement are needed. 

There have been proposals for new agricultural guest worker programs. Any 

new program should meet several criteria: 

1) A roadmap to immigration status and citizenship: if future 

farmworkers from abroad are needed, they should have a meaningful 

opportunity to become citizens. While some foreign workers may 

choose to work only seasonally and not remain permanently in the 

United States, they should have the chance to become full-fledged 

members of the nation that they help feed. 

2) Strong and equal labor protections: U.S. farmworkers should be 

included in the same labor protections that cover other workers, and 

guest workers should be covered by those protections as well. Because 

- 2 -
90 

temporary foreign workers hold a restricted stahlS that limit their 

ability to bargain for better labor standards, strong protections are 

needed to prevent exploitation of foreign workers, beginning with the 

recruitment in their home countries. 

Strong protections must also preserve U.s. workers' job opporhmities and 

prevent depression in wage rates and other job terms. 

Effective government oversight is also imperative due to frequent violations of 

the modest labor protections in guest worker programs. 

3) True economic freedom and mobility: Like any other industry, 

growers should have to compete in the marketplace to attract and 

retain workers by paying competitive wages and providing desirable 

working conditions. Any visa should provide workers with true 

portability so they can freely bargain for better jobs. 

4) Sensible limits: The H-2A program has no cap on the number of visas 

that employers may obtain each year. It does contain economic 

disincentives that discourage employers from seeking more workers 

than they need in an effort to distort the labor market. The H-2A 

program and any program in the future should also contain a cap tied 

to true market needs to ensure that employers do not have unlimited 

access to vulnerable foreign workers that could easily lead to job 

displacement and lower wages for U.s. workers. 

- 3 -
91 

MAFO 

MAFOs' mission is to facilitate the sharing of concerns, ideas, and strategies to 

improve services to farmworkers in partnership with others. 

MAFO began in the early 1970's to represent issues facing migrants and the 

midwest farm worker organizations that serve them at the national level. The 

federal government focused their attention primarily on migrant's home states 

and ignored the midwest and/or receiver states. As a result, farmworker 

organizations began grouping together in the midwest on a federal regional 

level. 

Today, as a National Parblership of Farmworker and Rural Organizations, 

MAFOs' uniqueness has allowed it to marshal its' resources and provide a 

national institute for farm workers, farm worker organizations, and federal and 

state agencies as a forum in which to coalesce and address issues and policies 

impacting farm workers. These issues and policies are not limited to 

programmatic items but encompass them and others that affect all aspects in the 

lives of farmworkers. Currently, MAFO is the only national organization that has 

a broad-based participation. 

- 4 -
92 

1020 W. BI)"n Mawr Ave., Chic~SO, Il bOM.O 

PII, (77]) 71/\ MOO • F~", (77]) 728 80109 

, 

Statement of Interfaith Worker Justice 

Submitted to Ike Immlgralion and Border Security Subcomm!ltee of the U,S, Hou ... of Representatives 

Committee on Ike Judic1ary 

f ebruary 26, 2013 Hurlne: "Aariculturl ilabor, from H·2A to a Worlcable Agricultural GuenwoM. 

Progra m.~ 

Inter/aith Worker Jli<tk~ ,ubmit< thl.lette, to <uppleQ'lent th~ reco,d 01 the ~Mr'uarv 26, 2013 House 

mdiciary SlIbcommln "" on Immivation and 8arde. SK .. ,ity hearing on "Agtku lturallabo" from H·2A 10 • 

Worlable Agricultural G ..... twa'ke' Prog,am." 

'W/lt~ D "'"~"" 11_" wll~ Jl"u I~ )'DUr IMd. "",,'1 tD/lt or1wJntDge oJ him. r""Ot lru> foreign •• me .am. 0$ " ""ti~. 

LOY(' ~jm I~t Dne of)'C<>r own. R .... embH Ihor you weft. On<e 0 slfQ~et" L .. _ili<"s 19;33-34 

Inttrfaitlr Worker lusti'e WOIleom ... e!fart. 10 'e/arm Our immigration sy<lem, """'ever any changes mu,t 

Ii'st and IQ't.mrxl en$u'e th.ll aU WOller; a,e treattd with dianily a"d 'UPE'<'!. When _ allow immill,a nl wor~er; 

1<1 be"-'ploited. we iawt!1 th"st>rnda rds 10' all work" ... naliveborn and ;",mlgr"",", current and IUI .. ,e. All the major 

'alth t",ditions spuk w'rth """ ""ice ,egll,di", honor;"Il ""d fMPKtini Ih"'" who wo,k )'OU' land,. Thtoretor.. let '" 

pay do,e altenUon '0 larmwo,~",. whe arlO Ihe ofl~n unacknowledg..d d"""" 01 thi' nations agricultural m~hL 

Om! half 01 1M la"" labor 10fee (oyerooe mlltion ili,icu l\lJre worb,,) I.d 8uthori:tdlmrnix""ioo ".IUS. 

Though ,~ wor~ e .. rHnely ~ard In ,,"e~ dangerous tcndltiont theV wor\;. In the w!lOW$ where mev l i111 prey 10 

abuse and e.ploitation. Undo<""",nted I~rmwotte,s and their Immedi~te family m.,.,.,bers should be granted , 

re~"'nal>1 .nd prompt o"""'t ..... iIV lourn leg.1 ' ",m;g,ilt"'n ,I1Ilu' and ""entuallv cilll ...... ~ip. An .... rned 

lell.iil"ti"" provam WOUld en'ur"a he31thvlarm secto" fa,rI,eat"",n! .~ I.,m ..... OM,.., and 3Just rewa,dlor 

the I.,,,,worker's <"",lal roJ e r" luding il.me,b. 

The l1·lA temporary foreign "Xrituh .. ,.1 wette, prouam pro • .de. "8,k"ll"r.1 emptcr;ers wi.h tile 

op~rtunlty to so;n an unlimile<! numDer of Vis.:o, 10 hire '<!a~nal f.rmworkers each yur. Th e H·2A pfOV;om'S wage 

ond OI/wr I.bor pfotectio ... de""'oped over monv decades m respOn.e to the Ilfoblem. e.per!eoted bv u,s. 

"'mworker, wOO 10$1 job <If>POrtunTIJes and I!)Cperie<t<ed Oeprfi<lon In w.g~ fate< and othe, jot> te""" under tne 

Bracem proeram and former H·1 Pfoe,am. The.e fJilSI t>f08fOm. and tile current lj·lA PfOS"'" h."" net onlv 

harmed U.S. cll!rens and l,w/1I1 perm."""t .....r<lelltS, but ha"" lat~n IIndue Mvanlai~ of thollS3nd. 0/ YtJlne,"bl~ 

sueS! workers, Stranset pretectlon. and enforcement a,,, needed. 

The,,, have tlftn proposal, lor • new agricultural gueot worI<e, progr.m a. p.'1 of immigra(ion reform •. Whil~ 

I~'t ar~ many ;ntfIQt e issues .t pliV, al\'( new Iluest work,r proe",m mU\t h~1I\' a' II. rot<' ''"Veral Cr1t~';3: 
93 

1. An inclusive and humane path to immigration status and citizenship: if farmworkers from other countries 

are needed they should have available to them a clear and well defined path to becoming immigrants and 

then citizens. IWJ understands that some farmworkers only wish to work seasonally and not seek 

permanent status, however the opportunity for immigration status should be presented to them. America is 

not a nation of 'guests', but a nation of citizens. It is from this we gain our strength. This strength must be 

enshrined in our immigration laws. 

2. Strong and equal labor protections: The labor and safety protections that cover other workers should 

include US farmworkers. Without strong protections an environment is created that is ripe for exploitation. 

Past guest farm worker programs permitted egregious workplace violations due to inadequate legal 

protection and lackluster enforcement of the little legal protection farmworkers did have. Any new program 

must guarantee equal protection under current labor law, including the right to organize. In addition, due to 

the prevalence of labor violations in past temporary farm worker programs, special enforcement measures 

must be taken by the government to ensure employers are adhering to the law. 

3. Only high road employers should be permitted guest workers: If a company claims a labor shortage they 

must prove the shortages are not the result of substandard wages, benefits, or working conditions. A high 

road employer is an employer that ensures a living wage and good benefits to its workers. Combined with 

the above mentioned 'strong and equal labor protections' this will help guard against depression in wage 

rates and other job terms. 

4. True economic freedom and mobility: Like all other well regulated industries, growers should compete in 

the marketplace to attract and retain workers. Any visa issued to farm workers must be fully portable so 

they can freely bargain and accept better jobs. 

5. Common sense limits: The current H-2A program has no cap on the number of visas an employer may 

obtain each year. While it does contain economic disincentives that discourage employers from seeking 

more workers than they need, this is not sufficient to prevent a distortion in the labor market. The H-2A 

program and any program in the future should also contain a cap tied to true market needs to prevent 

employers from having unlimited access to vulnerable foreign workers that could easily lead to job 

displacement and lower wages for u.s. workers. 

Do nat take advantage of a hired worker who is poor and needy, whether that worker is a fellow Israelite or 

a foreigner residing in one of your towns. Deuteronomy 24:14 
94 

CE NTER NEW YORK 

Rochester . Kingston. "lbMY 

SllIIemrru of Worke r JIl life Crut er of New York 

Submined to the Immigra tion ~Cld Ul)rder Security Suocommince of tht U.S. /louse of 

R~I)rr5t rrtllii\ r~ Comminet on the Judieiar), 

February 26. ZOll iI ~a rin g: M-Agri,rullural I .. ahor: .'rom 11 -2" 10 It Workable Agri crrhnral 

G utstworkt r rrogram." 

The WorJ.;er Justi~e eemer of New York submits tbis leUer \o.suppkmeot the record of 

the February 26. 2013 House Judiciary Subcommittee on Immigration and Border Security 

hearing on" Agricuhllrnl Labor' From 1~ ·2A 10 a Workable Agricullural Gucstl''Orh'T l'rogl'3ll1" 

The Worker Justice Cenler of New York (FKA FarmwOlker legal Services) represems the 

merger of F~rmworker legal Service orNY (FLSNYI and the Workers' Ri ghts Law Center of 

NY (WRLC). Dllr merger builds on dt>i:Hdes of achicveml'flt in providing direct legal services to 

immigrant and low-wage workers. elTlpowerillg OOlnmunities. lind advocating for institutiollal 

change 

We write 10 c.~press our view!: abOllt imtnignltion policy and the 11-2A temporary foreign 

agriculLllral worker program, which I!; the 5Ubjccrofthc February 26, 201) hearing before Ihe 

House Subcommillet' on Immigration and Border Security We welcomeelTons to reform our 

immigration system bUI we wish 10 ensure Ihm agriclI1iuml wori(ers and their families nre treated 

fairly and consistently with (JUr nation'S democnl\ic and ecOllomic freedoms Our thiny plus 

years of experience " .. ith immigrants ,!mployed under guestWQrker ... i~s have convinced us thai 

the"u"en\ H-2A prog.r<lm should be abolished and plans to eitber expand it or establish some 

other fonn of It be tenuinated 

Undocumented farmworkers Ind their immediate family membcrs should begrnnted a 

reasonable and prompt oppt»1uni1y 10 Cant legal immigration stalus and cilizellship. More 1han 

one-half of the fann labor force-over one million current agricultural workers--lack authorized 

immigration slatus. An earned legali;~atiofl program would help ensure a productive famt sector 

and fair treatment of the people who put food on our tll.ble. Famlwor~ers' poor working and 

living conditions BTl' \try much I product of our immigration policy's !laws, 

The H-2A temportlry foreign ngricultural wor~er program provides agricultural 

employers wilh Ihe opponllllity 10 gain an unlimited number of visas to hire ;casollal 

falmWQrkers each year, The H-2A ogram'~ wage and other labor protections developed over 

many dl't:ades in Tl'Sponse to the problems experienced by U,S. fannworkers who lost job 

opportunities and ~p~rie"ced depres:\ion;n wage "lies and OIher job temls under the Bracero 
95 

program and former H-2 program. These past programs and the current H-2A program have not 

only harmed U.S. citizens and lawful permanent residents, but have taken undue advantage of 

thousands of vulnerable guestworkers. Based on our historical experience with guestworker 

programs, we firmly believe that such programs are inherently flawed as a method oflabor 

recruitment of immigrant farm workers. 

There have been proposals for new agricultural guestworker programs. Despite our general 

opposition to guestworker programs, in the event that our current political climate prompts a 

revision, expansion, or complete overhaul of the current H2-A program, we believe that the 

following minimum criteria are essential to avoid the most egregious forms of abuse currently 

rampant within the agricultural sector: 

1) A roadmap to immigration status and citizenship' if future farmworkers from abroad are 

needed, they should have a meaningful opportunity to become immigrants and citizens. While 

some foreign workers may choose to work only seasonally and not remain permanently in the 

United States, they should have the chance to become full-fledged members of the nation that 

they help feed. The H-2A program should be modified to enable its participants to earn 

immigration status. 

2) Strong and eqnallabor protections: U.S. farmworkers should be included in the same labor 

protections that cover other workers, and b'llestworkers should be covered by those protections as 

well. Because temporary foreign workers hold a restricted status that limits their ability to 

bargain for better labor standards, strong protections are needed to prevent exploitation of 

foreign workers, beginning with the recruitment in their home countries. Strong protections 

must also preserve U.S. workers' job opportunities and prevent depression in wage rates and 

other job terms. Etrective government oversight is also imperative due to frequent violations of 

the modest labor protections in guestworker programs. 

3) True economic freedom and mobility: Like any other industry, growers should have to 

compete in the marketplace to attract and retain workers by paying competiti ve wages and 

providing desirable working conditions. Any visa should provide workers with true portability 

so they can freely bargain for better jobs. 

4) Sensible limits: The H-2A program has no cap on the number of visas that employers may 

obtain each year. It does contain economic disincentives that discourage employers from 

seeking more workers than they need in an effort to distort the labor market. The H-2A program 

and any program in the future should also contain a cap tied to true market needs to ensure that 

employers do not have unlimited access to vulnerable foreign workers that could easily lead to 

job displacement and lower wages for U.S. workers. We recommend that an annual audit of the 

program be conducted by an independent third party to verify that genuine recruitment efforts are 

camed out by agricultural employers among U.S. job seekers before employers can qualify to 

participate. 
96 

Statement of National Farm Worker Ministry 

Submitted to the Immigration and Border Security Subcommittee of the U.S. House of 

Representatives Committee on the Judiciary 

February 26, 2013 Hearing: "Agricultural Labor: From H-2A to a Workable Agricultural 

Guestworker Program." 

National Farm Worker Ministry (NFWM) submits this letter to supplement the record of the 

February 26,2013 House Judiciary Subcommittee on Immigration and Border Security hearing 

on "Agricultural Labor: From H-2A to a Workable Agricultural Guestworker Program." 

We write to express our views about immigration policy and the H-2A temporary foreign 

agricultural worker program, which is the subject of the February 26, 2013 hearing before the 

House Subcommittee on Immigration and Border Security. We welcome efforts to reform our 

immigration system but we wish to ensure that agricultural workers and their families are treated 

fairly and consistently with our nation's democratic and economic freedoms. 

Undocumented farmworkers and their immediate family members should be granted a 

reasonable and prompt opportunity to earn legal immigration status and citizenship. The great 

majority of farm workers, the people who labor every day to harvest the food on our tables, are 

undocumented. NFWM staff and volunteers have heard first hand reports from many farm 

workers of the ongoing abuse they sutfer in the tlelds because they are threatened with tiring or 

deportation if they complain. They should not now have to experience a punitive immigration 

process. The opportunity to earn legal status would make it possible for them tlnally, to work, 

live and participate in their communities without fear. We have all benetlted from farm workers' 

laborl 

NFWM has also heard trom workers who harvest food for US families, but haven't been 

able to cross the border to their countries of origin to see their own families for years. Achieving 

legal status would help end this moral travesty. 

The H-2A temporary foreign agricultural worker program provides agricultural 

employers with the opportunity to gain an unlimited number of visas to hire seasonal 

farmworkers each year. The H-2A program's wage and other labor protections developed over 

many decades in response to the problems experienced by US. famlworkers who lost job 

opportunities and experienced depression in wage rates and other j ob terms under the Bracero 

program and former H-2 program. These past programs and the current H-2A program have not 

only harmed u.S. citizens and lawful permanent residents, but have taken undue advantage of 

thousands of vulnerable guestworkers. Stronger protections and enforcement are needed. 

There have been proposals for new agricultural guestworker programs. Any new 

program should meet several criteria: 

1) A roadmap to immigration status and citizenship: if future farmworkers from 

abroad are needed, they should have a meaningful opportunity to become immigrants and 

citizens. While some foreign workers may choose to work only seasonally and not remain 
97 

permanently in the United States, they should have the chance to become full-fledged members 

of the nation that they help feed. The H-2A program should be modified to enable its 

participants to earn immigration status. 

2) Strong and equal labor protections: U.S. farmworkers should be included in the 

same labor protections that cover other workers, and guestworkers should be covered by those 

protections as well. Because temporary foreign workers hold a restricted status that limits their 

ability to bargain for better labor standards, strong protections are needed to prevent exploitation 

offoreign workers, beginning with the recruitment in their home countries. Strong protections 

must also preserve U.S workers' job opportunities and prevent depression in wage rates and 

other job terms. Effective and ongoing government oversight is also imperative due to 

frequent violations of the modest labor protections in guestworker programs. For example, 

NFWM has visited crowded H2A labor camps in which inspections were held before the workers 

moved in but not held later to determine if more than the agreed upon number of workers were 

housed or conditions remained acceptable. 

3) True economic freedom and mobility: Like any other industry, growers should have 

to compete in the marketplace to attract and retain workers by paying competitive wages and 

providing desirable working conditions. Any visa should provide workers with true portability 

so they can freely bargain for better jobs. 

4) Sensible limits: The H-2A program has no cap on the number of visas that employers 

may obtain each year. It does contain economic disincentives that discourage employers from 

seeking more workers than they need in an effort to distort the labor market. The H-2A program 

and any program in the future should also contain a cap tied to true market needs to ensure that 

employers do not have unlimited access to vulnerable foreign workers that could easily lead to 

job displacement and lower wages for U.S. workers. 
98 

Statement of Migrant Support Services of Wayne County (NY) 

and Wayne Action for Racial Equality 

Submitted to the Immigration and Border Security Subcommittee of the U.S. House of 

Representatives Committee on the judiciary 

February 26, 2013 Hearing: "Agricultural Labor: From H-2A to a Workable Agricultural 

Guestworker Program." 

Migrant Support Services of Wayne County (NY) and Wayne Action for Racial Equality 

submit this letter to supplement the record of the February 26,2013 House Judiciary Subcommittee on 

Immigration and Border Security hearing on "Agricultural Labor: From H-2A to a Workable 

Agricultural Guestworker Program." 

We write to express our views about immigration policy and the H-2A temporary foreign 

agricultural worker program, which is the subject of the February 26, 2013 hearing before the House 

Subcommittee on Immigration and Border Security. We welcome etlorts to reform our immigration 

system but we wish to ensure that agricultural workers and their families are treated fairly and 

consistently with our nation's democratic and economic treedoms. 

Undocumented farm workers and their immediate family members should be granted a 

reasonable and prompt opportunity to earn legal immigration status and citizenship. More than onehalf of the farm labor force-over one million current agricultural workers-lack authorized 

immigration status. An earned legalization program would help ensure a productive farm sector and 

fair treatment of the people who put food on our table. F armworkers' poor working and living 

conditions are very much a product of our immigration policy's flaws. 

The H-2A temporary foreign agricultural worker program provides agricultural employers with 

the opportunity to gain an unlimited number of visas to hire seasonal farmworkers each year. The H2A program's wage and other labor protections developed over many decades in response to the 

problems experienced by U.S. farmworkers who lost job opportunities and experienced depression in 

wage rates and other job terms under the Bracero program and former H-2 program. These past 

programs and the current H-2A program have not only harmed U.S. citizens and lawful permanent 

residents, but have taken undue advantage of thousands of ... ulnerable guestworkers Stronger 

protections and enforcement are needed. 

Working directly within the farmworker communities in Wayne County, NY, with the largest 

population of migrant labor and their families in Western NY due to the second largest production of 

apples in the country and a large producer of pears, potatoes, onions, and tart cherries, we have 

witnessed the difficulties imposed by draconian H-2A policies. Separation offamilies, poor working 

conditions, contractual breeches, human rights violations, and poor labor law enforcement. We cannot 

support any program that does not include the following criteria 

Farmworkcr Justice WWW.fMID\vorkcrjusticc.org vVashington, D.C. 
99 

1) A roadmap to immigration status and citizenship: if future fannworkers from abroad are 

needed, they should have a meaningful opportunity to become immigrants and citizens. While some 

foreign workers may choose to work only seasonally and not remain pennanently in the United States, 

they should have the chance to become full-fledged members of the nation that they help feed The H2A program should be modified to enable its participants to earn immigration status 

2) Strong and equal labor protections: US. fannworkers should be included in the same 

labor protections that cover other workers, and guestworkers should be covered by those protections as 

well. Because temporary foreign workers hold a restricted status that limits their ability to bargain for 

better labor standards, strong protections are needed to prevent exploitation of foreign workers, 

beginning with the recruitment in their home countries. Strong protections must also preserve U.S 

workers' job opportunities and prevent depression in wage rates and otherjob tenns. Effective 

government oversight is also imperative due to frequent violations of the modest labor protections in 

guestworker programs. 

3) True economic freedom and mobility: Like any other industry, growers should have to 

compete in the marketplace to attract and retain workers by paying competitive wages and providing 

desirable working conditions. Any visa should provide workers with true portability so they can freely 

bargain for better jobs 

4) Sensible limits· The H-2A program has no cap on the number of visas that employers may 

obtain each year. It does contain economic disincentives that discourage employers from seeking more 

workers than they need in an effort to distort the labor market The H-2A program and any program in 

the future should also contain a cap tied to true market needs to ensure that employers do not have 

unlimited access to vulnerable foreign workers that could easily lead to job displacement and lower 

wages for U.S. workers. 

Sincerely, 

John L. Ghertner, MD 

Migrant Support Services of Wayne County (NY) 

Wayne Action for Racial Equality 

6055 Robinson Rd 

Sodus, NY 14551 

Cell: 5857333171 

Farmworkcr Justice WWW.fMID\vorkcrjusticc.org vVashington, D.C. 
100 

Statement of The Greater Rochester Coalition for Immigration Justice 

Submitted to the Immigration and Border Security Subcommittee of the U.S. House of 

Representatives Committee on the Judiciary 

February 26, 2013 Hearing: "Agricultural Labor: From H-2A to a Workable Agricultural 

Guestworker Program." 

The Greater Rochester Coalition for Immigration Justice submits this letter to supplement the 

record of the February 26, 2013 House Judiciary Subcommittee on Immigration and Border Security 

hearing on "Agricultural Labor: From H-2A to a Workable Agricultural Guestworker Program." 

We write to express our views about immigration policy and the H-2A temporary foreign 

agricultural worker program, which is the subject of the February 26, 2013 hearing before the House 

Subcommittee on Immigration and Border Security We welcome efforts to refonn our immigration 

system but we wish to ensure that agricultural workers and their families are treated fairly and 

consistently with our nation's democratic and economic freedoms. 

Undocumented farmworkers and their immediate family members should be granted a 

reasonable and prompt opportunity to earn legal immigration status and citizenship. More than onehalf of the farm labor force-over one million current agricultural workers-lack authorized 

immigration status. An earned legalization program would help ensure a productive fa11ll sector and 

fair treatment of the people who put food on our table. Fannworkers' poor working and living 

conditions are very much a product of our immigration policy's flaws. 

The H-2A temporary foreign agricultural worker program provides agricultural employers with 

the opportunity to gain an unlimited number of visas to hire seasonal farmworkers each year. The H2A program's wage and other labor protections developed over many decades in response to the 

problems experienced by U. S. fannworkers who lost job opportunities and experienced depression in 

wage rates and other job tenns under the Bracero program and former H-2 program. These past 

programs and the current H-2A program have not only harmed U. S. citizens and lawful permanent 

residents, but have taken undue advantage of thousands of vulnerable guestworkers. Stronger 

protections and enforcement are needed. 

In our fanning communities in the Genesee Valley Region surrounding Rochester, NY and in 

the domestic and construction trades within Monroe County, New York we have witnessed the effects 

of harsh treatment and immigration enforcement on the families who come to support our economies. 

These families must be recognized for their potential to bolster not only our economy, but also our 

lives. We recognize their contributions now and into the future. It is time that our Congress recognizes 

the humanity of this large population within our communities. 

There have been proposals for new agricultural guestworker programs. Any new program 

should meet several criteria: 

Fannworker Justice w"\v"\v.faIlll"\vorkerjustice.org Washington, D.C. 
101 

1) A roadmap to immigration status and citizenship: iffuture fannworkers from abroad are 

needed, they should have a meaningful opportunity to become immigrants and citizens. While some 

foreign workers may choose to work only seasonally and not remain pennanently in the United States, 

they should have the chance to become full-tledged members of the nation that they help feed. The H2A program should be modified to enable its participants to earn immigration status. 

2) Strong and equal labor protections: U.S. farm workers should be included in the same 

labor protections that cover other workers, and guestworkers should be covered by those protections as 

welL Because temporary foreign workers hold a restricted status that limits their ability to bargain for 

better labor standards, strong protections are needed to prevent exploitation of foreign workers, 

beginning with the recruitment in their home countries. Strong protections must also preserve U.S. 

workers' job opportunities and prevent depression in wage rates and other job tenns. Effective 

government oversight is also imperative due to frequent violations of the modest labor protections in 

guestworker programs. 

3) True economic freedom and mobility: Like any other industry, growers should have to 

compete in the marketplace to attract and retain workers by paying competitive wages and providing 

desirable working conditions. Any visa should provide workers with true portability so they can freely 

bargain for better jobs. 

4) Sensible limits: The H-2A program has no cap on the number of visas that employers may 

obtain each year. It does contain economic disincentives that discourage employers from seeking more 

workers than they need in an effort to distort the labor market The H-2A program and any program in 

the future should also contain a cap tied to true market needs to ensure that employers do not have 

unlimited access to vulnerable foreign workers that could easily lead to job displacement and lower 

wages for US. workers. 

Sincerely, 

John L Ghertner, MD 

Greater Rochester Coalition for Immigration Justice 

c-l coaliiion (~r(ailh haM!d civic, adv()cac.v, farming and educalional organizaliol1s 

6055 Robinson Rd. 

Sodus, NY 14551 

Cell 585 733 3171 

Fannworker Justice w"\v"\v.faIlll"\vorkerjustice.org Washington, D.C 
102 

Mr. GOWDY. And without taking any of your time, I would ask 

the same for a statement from our colleague, Doc Hastings. 

[The information referred to follows:] 
103 

Ms. LOFGREN. I would also like to just note that a wonderful person who is leading a delegation from California is here in our hearing room, Professor Cynthia Mertens from the University of Santa 

Clara School of Law, my alma mater. So welcome, Professor 

Mertens, and the students and others that you have brought here 

today. It is wonderful to see you. 

I have a number of questions. First, our prayers are with President Rodriguez. We know that he had a death in his family and 

was unable to be here, but we are very pleased to have you, Mr. 

Kashkooli, and your terrific testimony. 

You have talked a little bit about the portability issue and the 

idea that you really would be for portability, but there is a flaw in 
104 

the proposal that has been put forward. I am not sure I understand 

that flaw. Could you explain it clearly to us? 

Mr. KASHKOOLI. Sure. I will be sure to pass on your condolences 

to Arturo. 

In the existing written proposal that the Growers Association has 

put together, in the so-called free-market program, they want the 

ability to tie workers to a contract that the Federal Government is 

involved in, and their visa, it has control over that visa. Therefore, 

the worker would have to go home if they broke the contract. That, 

therefore, is not portable. That worker does not have the ability to 

do that. 

We do not object to an employer being able to tie a worker to a 

contract even if the Federal Government is involved. But then if 

that happens, we need to make sure that the set of protections that 

were negotiated under President Reagan or something like them, 

their equivalent, continue to be in place. 

Senator Rubio has said that if an employer has a lot of leverage 

over the worker, then the worker needs to have more sets of protections from the government, and we subscribe to that. 

Ms. LOFGREN. So if I understand it correctly, you are actually not 

objecting to having a temporary worker program, provided that it 

is truly portable, there are labor protections that don’t incentivize 

employers to hire guestworkers as compared to American citizens 

or legal permanent residents, and that there is cap so that you actually have a market, not a limitless supply of foreign workers. 

Would that be a fair summary of your position? 

Mr. KASHKOOLI. That is exactly right, with two other additions. 

One, equality of treatment; and second, a roadmap to citizenship 

for people who are not, in fact, temporary. Somebody who is temporary, but someone who is here year after year and most of the 

year, that is no longer temporary. 

Ms. LOFGREN. So that is addressing people who have been here 

for a long time and people who might in the future come for a very 

long period of time. 

Mr. KASHKOOLI. Correct. 

Ms. LOFGREN. You know, even though we don’t have agreement 

yet, it seems to me that there are the elements for getting an 

agreement here, and that is a piece of good news that we can actually make progress on. 

I am happy that the California Farm Bureau is represented by 

the American Farm Bureau, I guess. We had testimony from the 

California Farm Bureau in the last Congress that they would oppose mandatory E-Verify without a solution for transitioning the 

current workforce into legal status, because just doubling down on 

the current situation would be a catastrophe. And they also indicated that the H-2A program simply didn’t work for them. I realize 

that the H-2A program has worked in some locations. We had testimony to that effect. But I think for most farmers, it has not 

worked. 

Do you agree, Mr. Stallman, that it would be really impossible 

to replace the current undocumented workforce with just a temporary program? Are you clear about that? 

Mr. STALLMAN. So you are talking about not doing anything to 

craft a program for those workers that are—— 
105 

Ms. LOFGREN. Well, we had Dr. Richard Land from the Southern 

Baptist Convention who was a witness at the Committee a number 

of years ago. I don’t want to steal his line because it was so well 

put, but he said that for years and years we had two signs at the 

southern border. One sign said ‘‘No Trespassing,’’ and the other 

sign said ‘‘Help Wanted.’’ In response to the latter sign, 10 or 11 

million people came in. There was no legal way for them to enter 

and do this job. Many of those individuals have been here for 

many, many years, decades. 

So, if those skilled individuals are working in agriculture, can 

they all be replaced just by a temporary worker program? If they 

were removed, could you actually make this work? 

Mr. STALLMAN. Unlikely, at least at the level that exists today, 

and that’s why our proposal takes into account both of those factors. 

Ms. LOFGREN. Right. 

Mr. STALLMAN. You know, how do you handle that experienced 

workforce that is here? They have been referenced as undocumented. They are documented, but the documents probably are 

fraudulent. 

Ms. LOFGREN. Right. 

Mr. STALLMAN. The law prevents employers from questioning the 

validity of the documents. 

Ms. LOFGREN. I understand that. 

Mr. STALLMAN. Yes, they are here, and that group needs to be 

dealt with. Part of our proposal deals with that. 

In addition, though, we need that future flow capability—— 

Ms. LOFGREN. I understand. But I wanted to press you, because 

some people have asserted in the past that we could simply eliminate the vast undocumented group of workers and just replace 

them with a temporary worker program, and I know your testimony was that that was not the case. But I thought it was important that that be very clear, that that is just not a workable scenario for your industry. 

Mr. STALLMAN. Because of all that experience that exists there, 

although it is the long-term employees that have all the experience, 

it would be highly disruptive if the scenario that you described occurred where we couldn’t continue to use those who are currently 

here, not with legal status, and just try to replace those with some 

kind of future flow or temporary program. 

Ms. LOFGREN. Thank you. I see my time has expired, so I will 

yield back. 

Mr. GOWDY. I think the gentlelady. 

They have a call for a vote, so I am going to try to squeeze in 

Judge Poe before we go. I would just say to my colleagues on both 

sides, I am coming back. I am going to go last. So if you are able 

to come back after votes, I promise you will not be the last one to 

ask your questions. 

With that, Judge Poe. 

Mr. POE. Thank you, Mr. Chairman. 

Thank you for being here, gentlemen. Mr. Stallman, it is good to 

see you. I notice you grow rice and Columbus. I represent a lot of 

rice farmers in Liberty County, Texas. Many times I am asked, 

well, how many illegals work for the rice farmers in Liberty? Well, 
106 

the answer is always none. They are too poor to hire anybody. It 

is all family farms. They have the sons and the daughters and the 

uncles and aunts all working those rice farms, and I am sure that 

is the same with you. Rice farming to me is the hardest farming 

there is. 

But anyway, I think the whole concept of food, Mr. Carr, is like 

you said. It is one thing for the United States to be dependent on 

foreign oil, but I think we can never get into a situation where we 

are dependent on some other country for what we eat. It is a national security issue. It is also a national health issue. So I operate 

on that premise. 

I do think the concept that it is working to some extent with the 

H-2A visas has merit, and I think that is a good place to start to 

fix it, and I also believe we should have a verified, expanded guestworker program in other areas, but deal with this issue first, and 

then, as the Chairman has said, let the market drive the whole 

issue of guestworkers. 

I commend all of you for trying to work together to find a solution that works, because you all are in the business, and I hope, 

as the other side has mentioned, we can come up with a solution 

that works, that is verifiable, but keeps that issue of national security in the forefront. 

Mr. Carr, I don’t know who is minding the farm now that you 

are in Washington, D.C. I don’t think this is peach season picking 

yet, but you had mentioned that in your experience, I want to address the issue that Americans will take the jobs that foreign nationals are taking. You have heard that since you ever started the 

farming business. I used to kind of subscribe to that philosophy as 

well. I think now we have developed a culture where, unfortunately, there are many Americans who would rather get paid not 

to work than will work on your farm. They just weigh the good and 

the bad and they decide they can get paid not to work through government programs. That is another issue we have to fix. 

So, if I understand you correctly, you advertised for a couple of 

years, 2010 to 2012, for American workers, and you had 2,000 positions available for workers, farm workers, and 483 Americans applied, and they were hired. 

Mr. CARR. Yes, sir. 

Mr. POE. One hundred nine did not show up on the first day of 

work; is that right? 

Mr. CARR. That is correct. 

Mr. POE. And then after a couple of days, 321 quit for various 

reasons. 

Mr. CARR. That is correct. 

Mr. POE. And therefore you ended up with 31 Americans working 

the whole season; is that correct? 

Mr. CARR. That is correct. 

Mr. POE. Is that experience—and I know that applies to your 

farm—is that experience that you have had typical of the industry, 

in your opinion? 

Mr. CARR. Yes, sir. That is very typical of the industry, in my 

opinion. 

Mr. POE. And what were you paying those folks? 
107 

Mr. CARR. My prevailing—I mean, my A-wage last year was $9.39 an hour, along with free housing and free transportation, although for domestic workers the base wage would have been my Awage at $9.39. 

Mr. POE. Okay. And is that typical? I am about out of time. Is 

that typical or not? 

Mr. CARR. That is very typical of the industry. If you look at the 

statistics, basically 6 percent, roughly 6 percent of all U.S. workers 

that are hired under H-2A contracts finish the job. I would say that 

my numbers are low compared to my neighbors to the south in 

Georgia, who have experienced 1,700 referrals in 1 year not to 

produce any that will finish a contract. 

Mr. POE. And you are required to hire Americans if you can. 

Mr. CARR. Yes, sir. We are required to. When I advertised these 

2,000 positions, this was over a 3-year seasonal period where I basically averaged about 650 visas a year, and in doing that we have 

to hire any willing and able U.S. worker that comes through the 

door, with no background check. All we can ask them is have they 

read the contract and can they do the work there. We take them 

to the field. We go through a 2-day training process. Quite frankly, 

most of them leave before the training process is even over with. 

But as you reported right there, 109 never even showed up, 

which is another problem within the system right now because 

under current regulations, pre-recruitment, we lose a visa requested for every U.S. worker that says they are going to show up. 

So that 109 under new regulations would have lost one-for-one. We 

would have lost visas to bring foreign workers over here, causing 

further delays in the program. 

Mr. POE. Thank you, Mr. Chairman. I yield back my time. I believe we can fix this problem and be beneficial to the United States. 

Thank you, sir. 

Mr. GOWDY. Thank you, Your Honor. 

We will be in recess pending votes, and then we will return. 

Thank you. I appreciate your patience. 

[Recess.] 

Mr. GOWDY. The Committee is back in session. Again, we appreciate everyone’s indulgence with that. 

I would recognize the gentlelady from the state of Texas, Ms. 

Jackson Lee. 

Ms. JACKSON LEE. Let me thank the Chairman and the Ranking 

Member for the beginning of a series of very important hearings, 

and these witnesses, who hopefully are being part of history today 

as we try to look at this large question of immigration reform. 

I want to acknowledge the American Farm Bureau by acknowledging the Texas Farm Bureau, who I have had the pleasure of 

working with very often. It just shows that in Texas, you can’t run 

away from our true roots. So I am delighted to see you here and 

to have the insight that you are giving to us. 

I want to, before I start my questioning, to just emphasize that 

I believe that there is a sense of urgency. It should be a sense of 

urgency on moving forward on comprehensive immigration reform. 

What we are gaining today is to understand, as I have done for 

over a decade now, having had witnesses such as many of you before this Committee before, that there are pieces of the immigra-
108 

tion puzzle that have distinctive needs. But I don’t believe we can 

ride one horse into the sunset and have the kind of approach that 

will help any of you, that as we fix what you need, we still need 

a system of a comprehensive approach because the very tradition 

of farming in many instances, except for family farms, is you do 

want workers who are consistent, skilled, but I think you all can 

see that maybe at some point, it may differ now in 2013, those 

workers may go somewhere else. Maybe they are assisting in poultry, and they may go on to some other area. And then, as in every 

profession or every work site, new ones come in. But you need a 

consistency. Your business needs to stay in place; you need a consistency. 

I don’t think we can get there when we say we can fix this, and 

then we leave a whole gaping hole and leave out comprehensive 

immigration reform. 

I serve as the Ranking Member on the Border Security Subcommittee, maritime security, and we met this morning, and I said 

the same thing, that it must be a continuum between border security and comprehensive immigration reform, securing the border. 

But I also said that you can’t move one without the other, because 

you need to have a certainty on the side of the immigration process 

in order to ensure that our friends at the border, the resources, the 

new way of approaching it, having outcomes, will be able to discern 

those who are here who are intending to do harm or the cartels or 

the drug violence versus individuals who are seeking to better their 

lives. 

So let me go to Mr. Kashkooli on, I think, a package that you 

gave us. I was trying to recount from your testimony what you 

would be interested in and having the right kind of package. Why 

don’t you continue to expand? Could you expand on this concept? 

Is this your concept, tying the workers to a contract, and then the 

Federal Government protect their status as workers? Could you 

just expand on that? 

Mr. KASHKOOLI. Sure. For employers who want to have a contract and the security of a contract with workers, we want to see 

the protections that are in the H-2A program. We want to see the 

H-2A program. And those protections are wage protections to make 

sure that farm workers are given the average wage, housing, transportation, and that they have some kind of security that they will 

be getting at least 75 percent pay for the work. I want to just emphasize what that means, because we have been talking about—— 

Ms. JACKSON LEE. And my time is short. Can I just interrupt 

with a question that Mr. Brown and all others can answer? 

Mr. KASHKOOLI. Absolutely. So those are the big things. And 

when we say wage rates, what we are looking for is the average 

wage rate of what is paid. In South Carolina, that is $9.78. So for 

someone working for 27 weeks, 40 hours a week, which is a job 

order, we are talking about $10,562. 

Ms. JACKSON LEE. For that particular skill? 

Mr. KASHKOOLI. Yes. 

Ms. JACKSON LEE. And let me just say that I view that as a skill, 

and I don’t like the issue of high skill/low skill. 

But my question would be would you take the workforce from the 

existing undocumented individuals, and I know the H-2A, or are 
109 

you leaving the pathway open for others to come as H-2A? So let 

me ask, because we have a population of those who are here in the 

United States. 

Mr. KASHKOOLI. Right. 

Ms. JACKSON LEE. And their difficulty is when they finish, they 

have the protection of being on a site when they are doing their 

farm work, which is seasonal. Then they are left, in essence, without status, without a job, because it is seasonal. The question is do 

they go back? Do they stay? If they go back, because they are undocumented, they can’t get back in. 

So let me just ask, are we talking from the existing base of workers, or are we recognizing that there may be caps on what we can 

bring in? 

Mr. KASHKOOLI. We want to see existing farm workers, the farm 

workers who have the skills, who are feeding us right now, be able 

to earn a roadmap and a legal path to citizenship. 

Ms. JACKSON LEE. Mr. Brown? 

Mr. BROWN. Our industry is uniquely different than the other industries at the table as far as the production of agriculture that is 

dependent on H-2A seasonal, and we are on the manufacturing 

side of agriculture. 

Ms. JACKSON LEE. Meat packing. 

Mr. BROWN. So we assume that the employees in our industry 

are eligible to be employed by passing through E-Verify. Now, 

when we are talking about a visa program from our industry’s perspective, we are looking at the future for when legislation does pass 

that recognizes those that are in the country now undocumented as 

legal. Once they are recognized as legal, they can continue to be 

employed wherever they so choose, whether it is on a farm, whether it is in a meat plant, where have you. 

We also recognize the challenge that work groups do move and 

migrate, as all of our people have through industries. In good economic times in this country, people will gravitate toward other 

jobs. So we then recognize a work shortage. We want to expand the 

current visa category and perhaps a new category outside of the H2A program, or if H-2A can accommodate it, then we would look 

at that. 

Ms. JACKSON LEE. Mr. Carr? 

Mr. GOWDY. The gentlelady’s time has expired. Mr. Carr, if you 

want to answer it—— 

Ms. JACKSON LEE. Thank you, Mr. Chairman. 

Mr. GOWDY [continuing]. As quickly as you can, that would be 

great. We are 2 minutes over on this one. 

Mr. CARR. Thank you, Mr. Chairman. Yes, I would like to answer 

that question. First of all, agriculture is united in the fact that we 

do need to keep our labor force that is here presently working. So 

we need to put them into a lawful status that allows them to continue to work in agriculture. But by the same token, history will 

show you that when we did this in 1986 and we gave amnesty to 

1.1 million agricultural workers, they very quickly left the farm. So 

any type of proposal has got to have a valid guestworker program 

that is going to provide us a future flow of future workers into this 

country legally. 
110 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. I think 

we have some challenges to respond to ahead of us, and I think we 

have some complexities that can be handled in the comprehensive 

immigration reform. I yield back. 

Mr. GOWDY. I thank the gentlelady from Texas. 

The Chair would now recognize the immediate past Chairman of 

the full Committee, the gentleman from Texas, Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. Mr. Chairman, I have 

three concerns, and what I would like to do is address one concern 

to each of three witnesses. The first concern is this, and, Mr. 

Kashkooli, let me ask you to respond. 

In 1986, we had a special agricultural worker program. It was 

riddled with massive fraud. After the program went into effect, the 

Government Accounting Office said that two-thirds of the individuals who had been approved as guestworkers were fraudulent. 

About 1 million people were expected to qualify as being eligible; 

3 million people were approved. 

How do we avoid fraud on that scale if we have another guestworker program where virtually anybody can apply for it, and how 

do we avoid what happened in 1986? We had hundreds of taxi drivers in New York City qualify as ag workers and obviously were allowed to stay in the country. 

Mr. KASHKOOLI. So I certainly hope we have all learned our lesson. In the ag jobs proposal, there was a pass work requirement 

and a future work requirement, so I think that is the first. That 

is important. 

Mr. SMITH. But the problem with fraud is that nobody checks 

that. That is what happened in 1986. We just simply don’t have the 

resources, the personnel, to check to make sure that that individual 

actually worked where they said they worked. That is why we had 

the New York City taxi drivers claiming to have worked on local 

farms, and clearly that was not the case. 

Mr. KASHKOOLI. So what we have proposed and in the past had 

agreed on is that there would also be a future work requirement 

to work in agriculture, and my understanding is that any proposal 

that we talk about in a comprehensive way would include E-Verify. 

So I think that is a basic way to make sure that we get rid of 

fraud. 

Mr. SMITH. I don’t know that E-Verify is going to block someone 

from becoming eligible for a guestworker program because E-Verify 

or any other biometric system that we might come up with is just 

going to check a single identifier. It is not going to check background or work or anything else. In other words, we recognize that 

we are trying not to repeat some of the same problems, whether 

they be with enforcement or anything else that we had in 1986, 

and I am just not convinced yet that we have come up with any 

way to avoid the massive fraud that occurred in 1986. We will have 

you just discuss that a little bit more, if we could. 

Mr. Stallman, nice to see a Texan here. A question for you, and 

I think you may have addressed it earlier to some extent, but I 

would like to follow up on it. My second concern is the endless 

pipeline. You have individuals admitted to work in this country, 

and if they can work in more than one location, you have the endless pipeline as they move on to other jobs, and meanwhile the 
111 

need is still there, so they are followed by more individuals who are 

admitted to work who then leave that job and move on, and you 

end up with millions of people coming into the country not working 

in the jobs that they were requested. 

Mr. STALLMAN. Well, our proposal is not an open pipeline. It is 

restrictive and—— 

Mr. SMITH. You limit it to the ag field, right? 

Mr. STALLMAN. Yes, yes. 

Mr. SMITH. Okay. 

Mr. STALLMAN. It is a proposal where ag employers have to register with USDA first to be able to provide a valid job to these individuals who come in either under an 11-month portable program, 

that is our portability program, or under a longer-term contract 

program. Now, these employees have the ability to move from registered employer to registered employer, but they are time-limited, 

and also they can be tracked. 

Mr. SMITH. I think you have narrowed the diameter of the pipeline there, but I still think you have a modified pipeline, because 

individuals who are needed to pick peaches in the hill country of 

Texas might leave, and then you are still going to need people to 

pick peaches in the hill country of Texas. Then you still have that 

phenomenon, I think, to some extent. 

Mr. STALLMAN. Well, if they leave the program, they would be 

out of status. 

Mr. SMITH. No. But they can move from that job to another job, 

is the point. 

Mr. STALLMAN. To another ag job. 

Mr. SMITH. To another ag job. So you are still leaving the original grower with a labor shortage that has to be filled. 

Mr. STALLMAN. But as long as you have the capability, if need 

is demonstrated and you don’t have domestic workers willing to do 

it, as long as you have the ability to bring in those workers, I 

mean, there is not going to be an unlimited number of agricultural 

jobs. 

Mr. SMITH. Right, right. So you hopefully hit that, and then we 

will see if that works. I hope it might. We will find out. 

Mr. Brown, my third concern is this. If individuals are admitted 

to this country as guestworkers and they stay here for any substantial length of time, then they are not guestworkers, they are 

permanent workers. But that occurs because they are not going 

home. If you have someone here for 3 years who doesn’t have to 

go home until the 3 years is up but only has to go home for a very 

short period of time during a several-year period, I don’t think they 

are ever going to go home, particularly if family members have 

been able to join them and so forth. 

That is why I think a true guestworker program—and I see my 

time is up—would be a short guestworker program. Real quickly, 

can you respond on that? Turn your mic switch on there, yes. 

Mr. BROWN. I would respond in two ways. One, there are ways 

to track these people currently, and there are ways to improve EVerify, with E-Verify Check. But also when we bring—— 

Mr. SMITH. I am talking about the length of time now. 

Mr. BROWN. But when we bring guestworkers into this country, 

we can establish through E-Verify electronic data for an exit visa. 
112 

So the government will know when the time is up and prevent 

them from going to another—— 

Mr. SMITH. But do you think they should go back every year for 

some period of time, or do you think they should be allowed to stay 

for many years? In which case, I would argue they are no longer 

temporary or guestworkers. 

Mr. BROWN. I think there should be a path to legalization, and 

I am going to leave that judgment—— 

Mr. SMITH. You are going in the opposite direction. Okay. But 

that is not a guestworker program. 

Thank you, Mr. Brown. Thank you, Mr. Chairman. 

Mr. GOWDY. I thank the gentleman from Texas. 

The Chair would now recognize the gentleman from Illinois, Mr. 

Gutierrez. 

Mr. GUTIERREZ. Thank you very much, Mr. Chairman. 

First of all, I have been here 20 years and I have never seen a 

panel put together like the one that we have before us that has 

been put together by the Republican majority and with invitations 

from the Democratic minority in which I have to say that in each 

and every instance, all of the witnesses, I am able to share values, 

I am able to share perspectives with you, I am able to sympathize, 

I am able to say that is how I think. 

Now, I think that bodes well for finding a solution to a problem. 

So I just want to say to all four of the witnesses—Mr. Gowdy, I 

want to congratulate you. I want to say that the first set of witnesses that we had from the STEM industry was very much the 

same; that is, people giving their perspective so that Congress can 

find a solution. What an incredible thing. I think that that is exactly what is going to happen here. I think that is part of the magic 

of the moment in which we live in, number one. 

Many people question why I would leave 20 years of seniority on 

the Financial Institutions Committee to come here and be a junior 

member. I would tell you, the answer is right here, because all of 

the Members of the Subcommittee showed up, and all the witnesses have brought information that helps us solve a problem. So 

that is why I came here, because I thought that that is exactly 

what the men and women of this Committee were going to do independent of their political affiliation. They were going to look for a 

solution. I think the testimony that all of you have given today is 

a reflection of that. 

Now, I want to say to Mr. Carr, I want you to be a successful 

farmer, and I want you to have the workers that you need, and I 

want you to have the reliable workers. I want you to have happy 

workers. I want you to have American workers. I want you to have 

people who share the same bond to this country and to that land 

that you and your parents and your grandparents shared with that 

land. I want them to adopt this and make it their own, as I am 

sure you have made it your own, and your family has. So that is 

always going to be where I look at this particular issue. 

So I think, Mr. Stallman, as you begin to talk about a pathway 

to legalization—and let me just say, as Democrats, when we first 

introduced bipartisan comprehensive immigration reform in 2005, 

I did it with Congressman Flake here, and Colby, and it was Kennedy and McCain. The first of 700 pages, the first 400 were en-
113 

forcement issues, with E-Verify there. So we passed that stage a 

long time ago. The Democrats have always been, and those who believe in comprehensive immigration reform and are looking for solutions understand that we need a verification system, because I 

don’t want another underclass of immigrants in this country again. 

I want to end illegal immigration and undocumented workers once 

and for all in this country, and I think that that should be the solution that we are looking at. 

So I want to say to Mr. Brown, look, I am ready to see what we 

need to do with dairy and poultry and those that pick garlic and 

those that pick lettuce and tomatoes and peaches and see how it 

is we categorize them. Whatever makes the most sense for productivity and for putting food on our tables and making sure that 

America is independent, because I think Mr. Carr makes a great 

point. We talk about energy dependence and the dependence on oil. 

We are quickly going to become a country that is going to be dependent on the fuel that Americans need each and every day as 

human beings, and that is food to put into our bodies and to fuel 

ourselves. So I think that is the place where I am going to be at. 

So I want to thank the Chairman. I want to say to Zoe Lofgren, 

I am so excited to be working with both of you and under your 

leadership in this Committee. 

I have just one question that I want to put, because I want to 

be also true to who I am and the values that I bring to this. So 

I guess I will ask Mr. Stallman. If Mr. Kashkooli organizes workers, do the members of your association, do the farmers have the 

right to fire one of your workers on one of your farms for joining 

a union and organizing in that union? Do you think that is right, 

that they should be able to be fired? They are doing a great job. 

They are picking the peaches. They are picking the grapes. They 

are picking the lettuce. They are picking the tomatoes. They are a 

great worker. But they decide to join a union. Should that farmer 

be able to fire that worker for joining a union or organizing a 

union? 

Mr. STALLMAN. We, in our proposal, have basically indicated that 

we do not want an expansion of collective bargaining rights beyond 

where they are now. 

Mr. GUTIERREZ. But what does that—I am in the union. I am 

picking on Mr. Carr’s farm peaches, and I am doing a good job of 

picking peaches. I doubt that I could do it, but just let us for a moment imagine that I did, and I wanted to join a union. Should Mr. 

Carr be able to fire me for joining that union even though I am 

doing a good job in every other respect? 

Mr. STALLMAN. If South Carolina is a right-to-work state, which 

I believe it is currently, they should have the ability to do that. 

Mr. GUTIERREZ. Thank you. 

Mr. SMITH [presiding]. Thank you, Mr. Gutierrez. 

The gentleman from Iowa, Mr. King, is recognized for his questions. 

Mr. KING. Thank you, Mr. Chairman. I want to thank all the witnesses. I think this is an excellent panel, and I appreciate you coming and delivering your testimony here before Congress today. 

I listened to the testimony that is here, and I am hearing from 

interests along the way that our jigsaw puzzle pieces to the broader 
114 

picture of what America has become and what America will become, depending on what decisions are made in this Immigration 

Subcommittee and in the fuller Judiciary Committee and by the 

voice and the will of the American people, hopefully reflected here 

by the United States Congress. 

I usually think that we should address these problems by asking 

the bigger questions first. For example, there is something over 6.3 

billion people on the planet. We know feeding them is a very difficult task, and that is what we are trying to get done. 

How many people would come to America if we adopted an open 

border policy? I ask that question rhetorically. I know no-one can 

deliver the answer to that, but we have to ask that question. We 

will have to answer that question, because each time that we open 

this up, it opens another gate, and we can’t count the number of 

people who will come through that, but it was 1.1 million under the 

’86 act, and Chairman Smith said, and I agree, it is the numbers 

I have been dealing with, over 3 million people actually came 

through that gate. How many might come through a limited gate 

in a guestworker program? We don’t know that answer, but it has 

always been more than has been announced. 

There are 11 million people here illegally. Well, some of that 

data holds up, and some of that I question. I think the number is 

larger. But those are things that we have to answer here as a 

panel, and I don’t want to put you all on that particular spot, but 

I would ask this. 

If we do a guestworker program and the question becomes, as 

Mr. Smith said, they become permanent residents under anything 

that we can devise, one of the things I would suggest is if we go 

that path, why not bond those workers so that we can ensure that 

they do return to their home if it is going to be a guestworker? 

I ask first Mr. Stallman if you and your organization can support 

a bonding philosophy and insurance. Here is what I do in my business. I guarantee that I will perform on the contracts that I enter 

into. So if the employer or the agency that he hires can post a bond 

that says we will ensure that they will go back home at the end 

of this period of time and then there will be no claim on the insurance, that would guarantee that. That would be the bonding concept. I would guess from the look on your face that you have not 

discussed that. Is that correct? 

Mr. STALLMAN. That is correct. Our program depends on setting 

up a legal structure for the process to occur, and then having an 

enforcement mechanism with technology and biometric identifiers 

and all of those things. The enforcement technology is available to 

where you control what happens under that visa. They are not 

flowing into the country in an unlimited fashion or staying. Our 

proposal contemplates returning back for certain periods of time, 

returning back to their home country. 

Mr. KING. We have seen the lack of enforcement since ’86, and 

I would submit that since the ’86 amnesty act was passed, there 

has been a decreasing enforcement of our immigration law in each 

succeeding Administration. So we are back to this question that all 

of this is predicated upon enforcement of the law, and I am suggesting instead that some of you have testified you would like to 

see the market forces take care of the migration. Why not allow the 
115 

surety companies to take care of the law rather than the Administrations, that have demonstrated they will not do that? 

I would just ask you this. Would you be open to that kind of discussion, to nail down a better way to ensure that the law would 

be enforced? 

Mr. STALLMAN. We are always looking for better ways for the law 

to be enforced. I think the problem that would exist with a bonding 

requirement, as we envision this program working with portability 

for workers, is who is going to be responsible? 

Mr. KING. Exactly. 

Mr. STALLMAN. We are basically allowing workers to work for 

multiple employers, which meets the needs of agricultural employers. 

Mr. KING. And if you had the bonding, and then the financial 

services portion of this would make that insurance, and we 

wouldn’t have to rely upon the government to enforce the law. 

I would pose another one here to Mr. Brown. And that is, would 

you agree that wages and benefits knowingly paid to people who 

cannot lawfully work in the United States should not be tax-deductible as a business expense? 

Mr. BROWN. We would support any enforcement proposal that 

guarantees or helps to guarantee that the people we are hiring are 

eligible, and if that is part of the component, then we would support that. 

Mr. KING. And if we were to amend E-Verify so that prospective 

employees could be utilized, and also that current employees could 

be checked by the employer? And when I say utilize, utilize EVerify for prospective employees and current employees. Would you 

support that so that an employer could clean up their workforce if 

they chose? 

Mr. BROWN. Being an industry that has used the program for 

over 20 years, we would find it very difficult to expand E-Verify 

until it is fixed. If E-Verify is fixed and we can get past the issues 

outlined in my testimony, then we would be for expanding EVerify’s use. But currently, Congressman, you cannot determine 

other than whether a name and a Social Security number matches. 

That is why people get through the net on the one hand, and enforcement comes our way. On the other hand, if we are too aggressive without something similar to Self Check, then we are set up 

for the discriminatory provisions. 

So we will work with every Member of this Committee to make 

E-Verify effective, and our industry will use it 100 percent. 

Mr. KING. I thought your recommendations on that were solid, 

and I am glad that you followed through and fleshed it out. 

I see that I am out of time. Mr. Chairman, I thank you and I 

yield back. 

Mr. SMITH. Thank you, Mr. King. 

The gentleman from Florida, Mr. Garcia, is recognized for questions. 

Mr. GARCIA. How are you gentlemen doing? Let me just reiterate, 

I think the position on this side, we want agricultural workers. As 

you may or may not know, we have a densely packed agricultural 

area in my district. It is the most productive land. But we have 

some of the similar problems that Mr. Carr is talking about. I don’t 
116 

think anyone there would agree with the statement that we have 

been decreasing enforcement, right? I don’t think any of you would 

think that that is what is going on, right? You can say it into the 

mic. It’s all right. We can hear you over here. 

Mr. STALLMAN. Based on the reports from our members in various parts of the country, it seems like enforcement by ICE has 

been increasing. 

Mr. GARCIA. Right. Mr. Carr? 

Mr. CARR. Not just by ICE but by the Department of Labor it has 

been increasing quite a bit. 

Mr. GARCIA. Mr. Brown? 

Mr. BROWN. ICE, Department of Labor, and Department of Justice. 

Mr. GARCIA. That’s good to hear. 

Mr. KASHKOOLI. ICE enforcement is absolutely up. All you have 

to do is look at how much it costs for somebody to get across the 

country. That market is working. 

Mr. GARCIA. We spent $18 billion on enforcing the border. That 

is more than we spend on the FBI, DEA, and all other Federal law 

enforcement. We had negative immigration last year. So I clearly 

understand your position. 

I had a meeting with my farmers last week. We were not here 

working, so I was meeting with some farmers, and my farmers 

said—at one point I said to my farmers—I was trying to be sympathetic. I said, you know, we need to get these folks documentation. 

They all smiled. A few of them chuckled, and they said, well, Congressman, they all have documentation. Whether it is real or not, 

we have no clue. Which I think basically spoke to the truth, that 

they don’t have documentation. 

Here is what I know. I know I can be in a canoe in Thailand and 

buy a mango for 15 cents, and the 15 cents at my home in Miami. 

The reality is we can figure out who they are and where they are 

if we really want to, and I think some of your positions on E-Verify 

make sense. I think these should be agricultural workers. I don’t 

think they should be able to move to another line. 

The farms in my district are relatively small, the nursery business or the tropical fruit business. They work for a few months, 

and then they go up to Wisconsin to pick cherries, and then they 

come back and they work on the perennials. These folks want to 

work the land. 

You know, Mr. Carr, I tend to think of the American worker as 

the greatest worker in the world. They are certainly the most productive worker. Obviously, your experience is not the same. So I 

have to assume that these are super-humans we are importing to 

do our work. 

Why is it that these people work harder than native Americans? 

My grandfather was a gardener, so I worked with him, and I know 

what it is to do back-breaking work. So, what is the matter? 

Mr. CARR. In my opinion, what you are looking at is they are 

wanting to live the American Dream. People that have been here 

in this country, we are living it every day. People that are coming 

in on these immigrant programs, the guestworker programs, this is 

a pathway to a better life for them, so they are willing to work 

hard. I am not saying that they work harder than the Americans 
117 

that we have. What I am saying is that the Americans we have 

here are not willing to do the jobs that we have at the farm level. 

Mr. GARCIA. Well, these are pretty special people, so I think they 

deserve treatment of some sort. I know we are sympathetic. I know 

you guys are in a tough place. I deal with farmers all the time in 

my district. I know you are trying to do right by them, just like 

I know those who organize laborers are trying to do the right job. 

But we need something that gives them some ability to make you 

compete for their work, but obviously most of you are too small to 

do contracts or contracts that lock them. I know that in the dairy 

industry, we may have to look at a special type of relationship 

there. But I am sure that on your farm it is seasonal, too. So they 

get to work other places, too. Correct? 

Mr. CARR. That is correct. I am farming seasonal, which is part 

of the problem with the program. 

Mr. GARCIA. Correct. 

Mr. CARR. Right now, the program requires employment to be 

seasonal in nature. What we need to do is put the seasonal nature 

on the worker and make the worker have a home tie to his home 

country, so making him temporary but not the job. Therefore, my 

company has progressed from 16 weeks a year harvest to 38 weeks 

a year harvest. I am bumping the boundaries of being able to participate in the program. This program needs to expand to all of agriculture no matter what your employment needs are, but let the 

worker be temporary in nature but not exclude anybody from participating just because your job is year round. 

Mr. GARCIA. Very good. Mr. Chairman, I yield back the balance 

of my time. I appreciate it. 

Mr. SMITH. Thank you, Mr. Garcia. 

The gentleman from Idaho, Mr. Labrador, is recognized for questions. 

Mr. LABRADOR. Thank you, Mr. Chairman. 

I read recently that Chamber and labor groups have come to an 

agreement in which they have agreed to principles regarding a new 

guestworker visa program, and one of the issues they agreed upon 

is the need to have a new government agency to analyze the market and come up with the right numbers of visas to issue. 

Mr. Stallman, is there currently a cap on the number of visas 

that are issued through the H-2A program? 

Mr. STALLMAN. The visas that are issued are subject to indicating the need. I don’t know if there is—— 

Mr. LABRADOR. There is no cap, right? So even though there is 

no cap on the number of visas that are available, the program that 

I hear the most complaints about in my office is actually the H-2A 

program. It is quite problematic. I was an immigration lawyer for 

15 years. I heard a lot of those complaints as well. 

It is so bureaucratic and inefficient that many employers actually 

prefer to work outside of the system and they are not working 

within the system, and I hear the same about the H-2B program, 

which is no better. In fact, just recently I had a constituent in my 

office whose livelihood depended upon receiving a piece of paper 

from the Department of Labor. He was waiting for the Department 

of Labor to approve the certification, and he flew all the way across 

the country. He came all the way from Idaho to Washington just 
118 

so he could sit at the Department of Labor and wait for somebody 

to give him an approval so he could get the bureaucratic permission to proceed with his business. 

We need to figure out how many visas are needed, as the Chamber and labor groups are saying. But I am not sure that a new 

agency is the right way to do it. What are your thoughts about 

that, Mr. Stallman? 

Mr. STALLMAN. Well, I am not sure a new agency to determine 

the number of workers and putting caps is the right way to do it 

at all. Our program is based on the concept of demonstrating need 

and having a market-based presence, basically, to allow those to 

come in to meet whatever the market needs. Some type of artificial 

caps determined by an agency of the government is probably not 

going to work very well for agriculture because agriculture’s needs 

are very variable, and government response to addressing those 

needs in terms of assessing the number of visa permits or the number of individuals that need to come in will probably fall behind the 

curve. 

Mr. LABRADOR. What are your thoughts about that, Mr. Carr? 

Mr. CARR. I do believe that a new agency needs to administer 

this program. First of all, it is in the Department of Labor right 

now, which currently has put all the regulations on the program, 

which prevents most employers from using it. By putting it in the 

USDA, an agency that is used to working with the farming industry, you can leave enforcement in the Department of Labor. But actually administering the program, I do believe it needs to move 

over to the USDA, who has the background of working with farmers in administering farm programs. 

Mr. LABRADOR. And do you think the Federal Government should 

be determining what the needs are of the farmworkers, or do you 

think that we should allow the market to? 

Mr. CARR. Currently, the H-2A program is uncapped, and I believe that any future program should be uncapped. If you create a 

system that has been put out there by the AWC, and you have a 

portable visa and a contract visa, within a certain amount of time 

and whatever you do with the adjustment of workers, you will fill 

up the workforce, and then your basis will be there. The transition 

and understanding what the transition is going to look like and 

putting an artificial cap on it could hinder business and continue 

to move operations outside our borders. 

Mr. LABRADOR. Mr. Kashkooli, you said in your testimony that 

you want the free market to work, but the free market is not an 

unlimited supply. I was a little bit confused by that statement. 

What is the free market if—— 

Mr. KASHKOOLI. Well, it shouldn’t be an unlimited supply of minimum wage labor. What we are talking about is that there needs 

to be certain guideposts. Right now in the country, there are 

600,000 U.S. citizens and legal residents who are professional farm 

workers. There is an additional million or so farm workers that we 

hope will be able to earn legal status through this program. 

So the Department of Labor’s job should be to make sure that, 

at a minimum, that U.S. workers, their wages are protected, that 

we have some kind of opportunity for them to get the job, and let 

us be clear about what we are talking about here. We are talking 
119 

about the farm worker who is a U.S. citizen who right now is making maybe $10 an hour. If another employer can bring in a job at 

$8 an hour without having to offer that job to the person who is 

making $10 an hour, the job at $10 an hour, of course, that person 

is not going to apply for that job. So that doesn’t make sense. 

So a program that would allow an unlimited supply of people 

making minimum wage, that is not a market—— 

Mr. LABRADOR. So who determines the supply? Is it going to be 

some government agency here in Washington D.C.? Is that what 

you want? 

Mr. KASHKOOLI. That is not actually what the United Farm 

Workers have suggested. 

Mr. LABRADOR. So what are you suggesting? 

Mr. KASHKOOLI. We think there are a number of ways you can 

do it. In the H-2A program, that is a program that does not have 

a cap right now. So that program is always going to be available. 

We think you should take the number of people who are going to 

earn legal status through the new program and allow other visas 

to be added based on the number of those people who leave. We 

do think that there does need to be a basic wage test. If farm worker wages on average are going down, then by definition there is 

going to be an oversupply, and therefore there shouldn’t be any 

new visas based on the average farm worker wages. And it is not, 

in fact, that complicated to get the average wage. The USDA does 

this every year. They get the average wage that farm workers are 

paid and, by definition, it is an average. So some employers don’t 

like it because they have to pay a little bit more. Some farm workers don’t like it because, therefore, they are getting paid less. But 

it is actually not that complicated. The USDA does it every year. 

Mr. LABRADOR. Thank you. 

Mr. SMITH. Thank you, Mr. Labrador. 

The gentleman from Puerto Rico, Mr. Pierluisi, is recognized for 

questions. 

Mr. PIERLUISI. Thank you, Chairman. 

I have a couple of questions for Mr. Brown. I saw from your testimony that you and your coalition of food manufacturers support an 

earned legalization program for undocumented immigrants living 

in the shadows. You specifically stated that Congress must provide 

a fair and practical roadmap to address the status of unauthorized 

immigrants. 

What, in your view, what would be a fair and practical roadmap? 

And would it include or would it bar immigrants from ever attaining citizenship? 

Mr. BROWN. Our coalition doesn’t go that far, sir. But I would 

say that we would begin with the thought that if we are talking 

about undocumented workers, that we would be talking about a 

pathway forward for people that are actually in the country now, 

working and contributing to the system. I think that would be the 

pool of people that we would be referencing. 

Mr. PIERLUISI. I also notice that you discuss the many benefits 

that immigrant workers bring to the communities in which your coalition has its businesses, including paying taxes, preventing 

shrinking school enrollment, and keeping businesses alive in communities with declining populations. Can you expand on the bene-
120 

fits to rural and distressed communities from growing immigrant 

communities? 

Mr. BROWN. Absolutely. As the son of an immigrant, there are 

many attributes that they bring to communities, from their cultural aspects, it could be religious aspects, working with boys and 

girls in the various sports programs, et cetera, working with law 

enforcement, the entire cultural experience, the fabric of our society 

is supported with these people. 

Mr. PIERLUISI. I will address these next questions to either Mr. 

Stallman or Mr. Kashkooli. When I think about farm workers, I 

immediately think about their wages and working conditions. I just 

heard that the H-2A program doesn’t have cap. But I know that 

it does have certain requirements that discourage employers from 

seeking more workers than they need, and that is what comes to 

my mind. 

It seems it would be in the interest of employers to bring in as 

many workers as possible, because under the laws of supply and 

demand, a large supply of workers will lead to lower wages. Yet, 

these lowered wages and working conditions would harm farm 

workers and could lead to U.S. citizens losing jobs to foreign workers from poorer countries. 

It sounds to me like a cap makes sense. We should have a cap 

on any guest farm worker program. 

Mr. KASHKOOLI. The United Farm Workers agrees with that position. There is a program right now, the H-2A program, that does 

not have cap. That is okay. There is a set of protections to make 

sure that people are not abused. They are imperfect. We would like 

to see the protections stronger. The employers would like to see 

them in a different direction. But, yes, any new program we think 

needs a cap. 

Mr. PIERLUISI. Would you agree with that, Mr. Stallman? 

Mr. STALLMAN. No, we do not agree with a cap because of the 

variable needs of agriculture and how quickly those needs can 

change. That is why we are promoting a market-based program 

that will allow the market to make those adjustments. An ag employer can indicate that they need positions and workers who wish 

to come in and work for the conditions that exist, which in many 

cases will be wages that are above minimum wage for sure, and as 

we have already talked about, the average is over $9 an hour. 

So the question is, to establish that workflow to meet the needs 

that exist, if you used a market-based program, you can do that, 

and we don’t think a cap is suitable because if someone gets the 

cap wrong, agriculture gets hurt. 

Mr. PIERLUISI. I yield back. 

Mr. SMITH. Thank you, Mr. Pierluisi. 

I would like to recognize myself to ask a follow-up question that 

came to mind as a result of Mr. Pierluisi’s questions. You responded by saying you believe in a market-based approach. One 

concern I have and that I am sure you have as well is that oftentimes the government does not give us the statistics or the figures 

or the metrics for the information we need for a market-based approach until after 6 months or a year, or sometimes 2 years. So 

how would you be able to respond in a timely way if you are not 
121 

getting those figures or statistics for a number of months or perhaps a year? 

Mr. STALLMAN. And that is the whole point in not allowing the 

government to set artificial wage rates, as they do in the H-2A program. What we are talking about doing is an ag employer can indicate that there is a need that cannot be filled with domestic workers, and then they will be a pool, if you will, of workers that are 

willing to come in. 

Mr. SMITH. But aren’t you going to be dependent to some extent 

on what the unemployment rate is among some of those workers, 

or not? 

Mr. STALLMAN. I suspect an unemployment rate among those 

workers or those that aren’t working, particularly if they are there 

under the program we have envisioned and they have portability, 

they will be moving to where the jobs and the wages are. 

Mr. SMITH. Okay. That is a pure market approach, and it is reliant upon, as you say, no government information whatsoever. Is 

that correct? 

Mr. STALLMAN. Well, the government role in this is to establish 

the structure of the visa program and the restrictions—— 

Mr. SMITH. Right. No, I am talking about as far as unemployment figures or anything else. You are not going to respond to anything the government does. 

Mr. STALLMAN. Because you would have to do a correlation directly with specific agricultural jobs, because you can’t do it in general. 

Mr. SMITH. Okay. Thank you. That answers my question. 

No other Members are here to ask questions. 

Thank you all for your testimony today. It was very, very helpful, 

and appreciate your input. 

[Whereupon, at 4:40 p.m., the Subcommittee was adjourned.] 

Æ