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The Perspective of American Agriculture

Outline of Remarks by Monte B. Lake

1. The Genesis of AgJOBS: The Need for an Adequate Legal Workforce

* The Illegal Immigration Reform and Immigrant Responsibility Act of 1996

* DOL Surveys Showing a Largely Undocumented Agricultural Workforce

* Social Security Administration Mismatch Letters

* Ongoing efforts to enact mandatory electronic employment authorization verification and enhance employer sanctions penalties

* RICO Lawsuits

2. Agriculture’s H-2A Reform (Guest Worker) Proposals 1996-2000

* Substantive Objectives of Guest Worker Legislation

* Politics of Guest Worker Legislation

* Emergence of Earned Adjustment of Status Legislation

3. Major Components of AgJOBS Legislation (S. 1645 and H.R. 3142)

Earned Adjustment of Status

* Retaining experienced agricultural workers

* Providing a transition to eventual expanded usage of the H-2A program

* Lessons learned from the SAW program: addressing amnesty and limiting fraud

H-2A Reform

* Simplifying and Expediting the Process for the Application for and Approval of the Admission of Foreign Workers

* Establishing a Reasonable and Affordable Wage Rate

* Avoiding Needless and Costly Litigation While Protecting the Interests of U.S. and Foreign Workers

4. Expected Impacts

* Stabilization of the agricultural work force

* Providing agricultural employers reasonable access to a legal workforce under circumstances where the government increases employers sanctions enforcement and/or enacts additional legislation targeting employers and aliens and expanding work place penalties

* Gradual expansion of the use of a reformed H-2A program

* Substantial decrease in illegal migration into U.S. agricultural jobs

* Enhanced competitiveness of labor intensive agriculture with foreign producers

* Establishment of a model for broader immigration reform in other industries

* Opportunity for increased future collaboration and communication between agricultural and worker interests developed through common interests in enactment and implementation of the AgJOBS legislation

S. 1645 and H.R. 3142

Summary of Significant Provisions
September 2003

Title I– Adjustment of Agricultural Workers to Temporary and Permanent Resident Status

Title I establishes a program whereby agricultural workers in the United States who lack authorized immigration status but who can demonstrate that they have worked 100 or more days in a 12 consecutive month period during the 18-month period ending on August 31, 2003 can apply for adjustment of status. Eligible applicants would be granted temporary resident status. If the farmworker performs at least 360 work days of agricultural employment during the six year period ending on August 31, 2009, including at least 240 work days during the first 3 years following adjustment, and at least 75 days of agricultural work during each of three 12-month periods in the six years following adjustment to temporary resident status, the farmworker may apply for permanent resident status.

During the period of temporary resident status the farmworker is employment authorized, and can travel abroad and reenter the United States. Workers adjusting to temporary resident status may work in non-agricultural occupations, as long as their agricultural work requirements are met. While in temporary resident status, workers may select their employers and may switch employers. During the period of temporary resident status, the farmworker’s spouse and minor children who are residing in the United States may remain in the U.S., but are not employment authorized. The spouse and minor children may adjust to permanent resident status once the farmworker adjusts to permanent resident status. Unauthorized workers who do not apply or are not qualified for adjustment to temporary resident status are subject to removal. Temporary residents under this program who do not fulfill the agricultural work requirement or are inadmissible under immigration law or commit a felony or 3 or more misdemeanors as temporary residents are denied adjustment to permanent resident status and are subject to removal. The adjustment program is funded through application fees.

Titles II and III—Reform of the H-2A Temporary and Seasonal Agricultural Worker Program

This section modifies the existing H-2A temporary and seasonal foreign agricultural worker program. Employers desiring to employ H-2A foreign workers in seasonal jobs (10 months or less) will file an application and a job offer with the Secretary of Labor. If the application and job offer meets the requirements of the program and there are no obvious deficiencies the Secretary must approve the application. Employers must seek to employ qualified U.S. workers prior to the arrival of H-2A foreign workers by filing a job order with a local job service office at least 28 days prior to date of need and also authorizing the posting of the job on an electronic job registry.

All workers in job opportunities covered by an H-2A application must be provided with workers’ compensation insurance, and no job may be filled by an H-2A worker that is vacant because the previous occupant is on strike or involved in a labor dispute. If the job is covered by a collective bargaining agreement, the employer must also notify the bargaining agent of the filing of the application. If the job opportunity is not covered by a collective bargaining agreement, the employer is required to provide additional benefits, as follows. The employer must provide housing at no cost, or a monetary housing allowance where the Governor of a State has determined that there is sufficient migrant housing available, to workers whose place of residence is beyond normal commuting distance. The employer must also reimburse inbound and return transportation costs to workers who meet employment requirements and who travel more than 100 miles to come to work for the employer. The employer must also guarantee employment for at least three quarters of the period of employment, and assure at least the highest of the applicable statutory minimum wage, the prevailing wage in the occupation and area of intended employment, or a reformed Adverse Effect Wage Rate (AEWR). If the AEWR applies, it will not be higher than that existing on 1/01/03 and if Congress fails to enact a new wage rate within 3 years, the AEWR will be indexed to the change in the consumer price index, capped at 4% per year beginning December 1, 2006. Employers must meet specific motor vehicle safety standards.

H-2A foreign workers are admitted for the duration of the initial job, not to exceed 10 months, and may extend their stay if recruited for additional seasonal jobs, to a maximum continuous stay of 3 years, after which the H-2A foreign worker must depart the United States. H-2A foreign workers are authorized to be employed only in the job opportunity and by the employer for which they were admitted. Workers who abandon their employment or are terminated for cause must be reported by the employer, and are subject to removal. H-2A foreign workers are provided with a counterfeit resistant identity and employment authorization document.

The Secretary of Labor is required to provide a process for filing, investigating and disposing of complaints, and may order back wages and civil money penalties for program violators. The Secretary of Homeland Security may order debarment of violators for up to 2 years. H2A workers are provided with a limited federal private right of action to enforce the requirements of housing, transportation, wages, the employment guarantee, motor vehicle safety, retaliation and any other written promises in the employer’s job offer. Either party may request mediation after the filing of the complaint. State contract claims seeking to enforce terms of the H-2A program are preempted by the limited federal right of action. No other state law rights are preempted or restricted.

The administration of the H-2A program is funded through a user fee paid by agricultural employers.

For more information, please call:

Sen. Larry Craig Erick Simmons 202-224-2752
Sen. Ted Kennedy Esther Olavarria 202-224-7878
Rep. Cannon Todd Thorpe x57751
Rob Morgan x57751
Rep. Radanovich Tricia Geringer x54540
Rep. Putnam Karen Williams x51252
Rep. Nunes Kedrin Simms x52523

The Wall Street Journal

Immigration's Progress
May 7, 2004; Page A16
Reports of the death of immigration reform have been greatly exaggerated. This week a bipartisan bill aimed at seasonal farm workers gained a 60th cosponsor, which gives it the filibuster-proof margin necessary to pass the Senate these days. All indications are that President Bush would like to sign the reform, known as AgJobs, but first he'll need the Republican leadership to step up to the plate.
The nation's farm economy has long suffered from a shortage of workers willing to do the backbreaking but essential labor that Americans tend to shun. To hire willing foreign migrants today, dairy farmers and crop producers must navigate something called the H-2A guest worker program. This is no mean feat. The Department of Labor compliance manual runs to 325 pages, and the specifications are notoriously legalistic and time-consuming. A common complaint, supported by General Accounting Office findings, is that applications for the temporary work visas often aren't approved until after the growing season has ended.
It's no surprise, therefore, that more than half of the industry's seasonal labor force is comprised of illegal aliens. And that number is based on self-disclosure worker surveys. Immigration experts say the actual figure is closer to 80%. After introducing the AgJobs bill last year, Republican Senator Larry Craig of Idaho noted that "agriculture, more than any other sector of the economy, has become dependent for its existence on the labor of immigrants who are here without documentation."
The current proposal is a welcome acknowledgment of these economic realities. Farm companies are the same as other businesses in preferring a stable and legal workforce. And the migrants they employ out of necessity would rather not live in daily fear of being exploited and deported. The AgJobs reforms would put in place worker protections and a streamlined hiring process. The goal is to fix a broken guest worker program and thereby induce more use of it.
Historically -- as during the bracero programs for Mexican farm workers in the 1950s and '60s -- the most effective way to reduce illegal immigration has been to make legal entry into the U.S. more accommodating. By lessening the flow of illegals and relieving pressure on the border patrol, these reforms would also be a boon for homeland security.
The most controversial feature of AgJobs is the "earned adjustment" provision that allows roughly 500,000 undocumented farm workers already in the country to apply for temporary legal status. After satisfying certain work requirements, they would become eligible for permanent residency. Critics call this an amnesty, but it's more accurate to call it a reward for honoring this social contract and contributing to U.S. society. The alternative is mass deportations, which would be politically unfeasible and economically destructive.
Another political reality is that Democrats and labor groups will block any reform that doesn't provide for some sort of earned adjustment. Republicans who reject such provisions but still claim to be in favor of reform are being disingenuous. Essentially, they are defending an immigration status quo that results in hundreds of migrant deaths annually and creates a thriving business for those who deal in human smuggling and false documents.
The ball is now in the court of Senate Majority Leader Bill Frist, who knows the bill is likely to pass if he brings it to a vote. That would put more pressure on foot-dragging House Majority Leader Tom DeLay to do the same. Republicans rightly complain when Democrats deny votes on popular bills. Here's a chance for the GOP to help workers and business, and to act on principle.