[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
AGRICULTURAL GUESTWORKERS: MEETING THE GROWING NEEDS OF AMERICAN
AGRICULTURE
=======================================================================
HEARING
before the
SUBCOMMITTEE ON
IMMIGRATION AND BORDER SECURITY
of the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
JULY 19, 2017
__________
Serial No. 115-40
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
31-629 WASHINGTON : 2018
COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
LAMAR SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio LUIS V. GUTIERREZ, Illinois
TED POE, Texas KAREN BASS, California
JASON CHAFFETZ, Utah CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania HAKEEM S. JEFFRIES, New York
TREY GOWDY, South Carolina DAVID CICILLINE, Rhode Island
RAUL LABRADOR, Idaho ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas TED LIEU, California
DOUG COLLINS, Georgia JAMIE RASKIN, Maryland
RON DeSANTIS, Florida PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado BRAD SCHNEIDER, Illinois
JOHN RATCLIFFE, Texas
MARTHA ROBY, Alabama
MATT GAETZ, Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
Shelley Husband, Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Immigration and Border Security
Jim Sensenbrenner, Jr., Wisconsin, Chairman
Raul R. Labrador, Idaho, Vice-Chairman
LAMAR SMITH, Texas ZOE LOFGREN, California
STEVE KING, Iowa LUIS V. GUTIERREZ, Illinois
JIM JORDAN, Ohio PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado SHEILA JACKSON LEE, Texas
MIKE JOHNSON, Louisiana DAVID CICILLINE, Rhode Island
ANDY BIGGS, Arizona
C O N T E N T S
----------
JULY 19, 2017
OPENING STATEMENTS
Page
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the
Judiciary...................................................... 4
The Honorable Ken Buck, Colorado, Subcommittee on Immigration and
Border Security, Committee on the Judiciary.................... 1
The Honorable Zoe Lofgren, California, Ranking Member,
Subcommittee on Immigration and Border Security, Committee on
the Judiciary.................................................. 3
WITNESSES
The Honorable David Valadao, 21st District of California, U.S.
House of Representatives
Oral Statement............................................... 7
Ms. Sarah Frey, President and CEO, Frey Farms
Oral Statement............................................... 8
Mr. Jon Wyss, Orchard Owner, Gebbers Farms
Oral Statement............................................... 10
Mr. Giev Kashkooli, Vice President, United Farm Workers
Oral Statement............................................... 12
AGRICULTURAL GUESTWORKERS: MEETING THE GROWING NEEDS OF AMERICAN
AGRICULTURE
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WEDNESDAY, JULY 19, 2017
House of Representatives
Subcommittee on Immigration and Border Security
Committee on the Judiciary
Washington, DC
The subcommittee met, pursuant to call, at 2:35 p.m., in
Room 2141, Rayburn House Office Building, Hon. Ken Buck
presiding.
Present: Representatives Buck, Goodlatte, Smith, King,
Jordan, Johnson, Biggs, Lofgren, Conyers, Gutierrez, and
Cicilline.
Staff Present: George Fishman, Counsel; Tanner Black,
Clerk; Stephanie Gadbois, Counsel; and David Shahoulian,
Minority Counsel.
Mr. Buck. The Subcommittee on Immigration and Border
Security will come to order. Without objection, the chair is
authorized to declare recesses of the subcommittee at any time.
We welcome everyone to today's hearings on agricultural
guestworkers, Meeting the Growing Needs of American
Agriculture. I recognize myself for an opening statement.
Good afternoon. This hearing is an important opportunity to
examine America's agricultural labor needs and the role of
foreign workers in this equation, an issue very important to me
and the people of Colorado. I look forward to Chairman
Goodlatte's introduction of and the committee's consideration
of the Agricultural Guestworker Act in the coming weeks. This
legislation presents a real opportunity for us to enact
fundamental agricultural guestworker reform for the first time
in three decades, reform that will benefit American
agriculture, the American consumer, and hungry people all over
the world.
After all, America is the world's breadbasket and its corn
bushel, and its salad bowl, and its potato patch, and its dairy
farm. This hearing is not about how we handle certain crops.
Instead, it is about year-round labor-intensive agricultural
products or products that require additional help at certain
times of the year, such as harvest.
Colorado provides a great example of the problem we are
examining today. Leprino Foods is the largest manufacturer of
mozzarella cheese in the United States and a leading producer
of whey protein. They have two production facilities in the 4th
Congressional District. When I visited Leprino, I heard stories
about how they had the capacity and market to increase their
production. However, Leprino can't ramp up their business to
meet market demand because the local dairies can't produce more
milk.
I also met with those local dairy farmers. They confirm
that recruiting employees continues to be the largest challenge
to their growing businesses and supplying more dairy products
for this country. This is the same story I hear as I visit farm
after farm across my district. Labor is the lifeblood of the
agricultural industry. Without the ability to find and retain a
reliable workforce, our agricultural industry will continue to
struggle to meet the market's needs.
When it comes to labor needs, agricultural labor is in a
class by itself. There is little debate over whether there
enough Americans willing to take on the job of a migrant farm
worker. In fact, over the past several decades, our government
has only encouraged Americans to abandon such labor, leaving
foreign workers to fulfill our season agricultural labor needs.
The Labor Department believes that workers who do have
legal status appear to be leaving farm jobs because of age or
opportunities for more stable and higher paying employment
outside of agriculture, and are being replaced almost
exclusively by unauthorized foreign-born workers. What legal
labor force options do growers have? Since 1986, the H-2A
program has provided visas for temporary agricultural workers.
However, over two decades ago, the American agriculture
industry told this committee that the program was characterized
by extensive complex regulations that limit employers' ability
to use the program, and by costly litigation challenging its
use when admissions of alien workers are sought. They allege
that the Department of Labor was implacably opposed to the
program.
For growers, the H-2A program was intended to ensure the
availability of sufficient labor for key needs like harvesting.
But for a program created to dynamically offer labor supply to
those farmers and ranchers most in demand, timeliness has never
been a strong suit.
Two decades later, little has changed. An apple grower told
us that were it not for the H-2A guestworker program, broken,
costly, and perilously litigation-prone as it is, we would be
unable to farm at all. One of the most frequently cited reasons
our region's farmers go out of business is that they simply
cannot continue under the burdens of the current H-2A program.
The H-2A program itself is designed to fail. It is
cumbersome and full of red tape. Growers have to pay wages far
above the local prevailing wage, putting them at a competitive
disadvantage against growers who use illegal labor. Employers
must also follow onerous regulations, like the 50 percent rule,
which requires them to hire any domestic workers who show up,
even after the employer has recruited for U.S. workers and
welcomed his or her H-2A workers from overseas.
In short, under H-2A, growers can't get workers when they
need them. Bureaucrats decide if employers have a full
workforce, not the weather or crop conditions. Moreover,
employers constantly face frivolous litigation by those who
don't think the H-2A program should even exist. What growers
need is a fair and functional guestworker program, one that
gives them access to the workers they need when they need them
at a fair wage and with reasonable mandates. Growers need a
partner agency in the Federal Government that treats them as
allies, not as adversaries.
I look forward to hearing from today's witnesses. We will
hear from a Member of the House of Representatives, Congressman
David Valadao, who represents one of the largest agricultural
districts in our country. We will hear from our growers who do
the right thing and utilize the H-2A program. We will hear from
an advocate for farm workers, who believes that the program
harms both American workers and the guestworkers themselves.
It is now my pleasure to recognize the ranking member of
the Subcommittee on Immigration and Border Security, Ms.
Lofgren of California, for her opening statement.
Ms. Lofgren. Thank you, Chairman Goodlatte, and we hope
that Chairman Labrador is well. And thank you, Mr. Buck, for
chairing this hearing.
As we know from many hearings we have held on this issue
over the last two decades, nowhere is evidence of our broken
immigration system more glaring and acute than in the
agricultural sector, where a critical half if not more of the
workforce is undocumented. We can't begin to fix our
immigration system without finding a solution for our
agricultural sector; I am sure on that we agree. I expect that
both chairmen are committed to finding such a solution. But
whatever we do, I am afraid we won't have a lasting solution
unless it is bipartisan and fairly balanced--balances the needs
of employers as well as workers.
Let's look at the facts. As we know from past hearings,
mechanized crops, like corn, wheat, and soy, aren't the real
problem. 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.
Now while farmers do their best to plan harvests, expected
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. We export so many
agricultural products, so many more than we import that the
sector is regularly the largest cause of our trade surplus.
Yet, Congress has long ignored the labor needs of this
sector. For decades, our country has, in fact, pushed to
educate our children for work in other areas. At the same time,
our immigration laws have not been updated to fill the void.
For example, despite the growing demand for workers, some on a
permanent basis, our immigration laws provide only 5,000 green
cards per year to people without bachelor's degrees. That is
5,000 per year, not just for agriculture, but landscaping,
forestry, hospitality, nannies, and the many other areas where
immigrants fill crucial needs. And until recently, the H-2A
temporary worker program wasn't widely used.
Farmers often complained to me that the program was too
bureaucratic and slow, that the H-2A workers were known to
sometimes arrive weeks after they were first needed. Many
growers felt they could not make the program work, and the
program was used sparingly in some parts of the country for
years.
In that environment, should anyone be surprised that market
forces worked their magic to pair up willing employers and
willing workers. A recent Department of Labor survey indicates
that at least half of America's farm workers are undocumented.
The vast majority of these workers have been here for a very
long time. Most of them have been here for at least 15 years,
and some 93 percent have been here for more than 5 years. These
workers came to fill critical needs, and many of our
constituents are still in business because those workers came.
There is no acceptable solution that fails to deal with this
reality.
Given congressional inaction, use of the H-2A program has
risen sharply in recent years. Last year, some 165,000 H-2A
visas were issued, making it a 160-percent increase in the use
of the program in 10 years' time. But this program cannot meet
our labor needs on its own. We have to find the courage to do
what is right, to provide a seat at America's table for those
who have long grown the food we serve on it.
The question before Congress is simple: Do we recognize
that we have an experienced workforce that has been a critical
economic part of the country for years, and provide a rational
way for them to obtain permanent legal status 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
exploited programs that will harm U.S. workers and foreign
workers alike.
I hope that we can all agree that the viable solution is a
balanced approach that both preserves the current workforce and
provides a reasonable path for new workers. If we learned
anything from our many hearings on this subject, it is that a
one-sided solution won't work. There are times when we
understood that. Years ago, growers and farm workers came
together to craft the AgJOBS compromise; and they came together
again in 2013 to support reforms in S. 744, the bipartisan bill
that passed the Senate by a wide margin.
It is worth noting that every farm organization, every
farmers group in the United States and the United Farm Workers
agreed on the elements in that bill. It was supported by
business and labor and had strong support from many Members on
both sides of the aisle.
Unfortunately, that bill never got a vote in the House. But
that bill shows that all sides can reach a balanced bipartisan
agreement when we work together for a common purpose. I think
we can do that again. I stand ready to be part of that process,
and I thank the chairman again for holding this hearing and I
yield back the balance of my time.
Mr. Buck. Thank you, Ms. Lofgren. It is now my pleasure to
recognize the chairman of the Judiciary Committee, Mr.
Goodlatte of Virginia, for his opening statement.
Chairman Goodlatte. Thank you, Mr. Chairman. As former
chairman of the House Agriculture Committee, I have had the
opportunity to learn firsthand what farmers face in dealing
with the H-2A program. It is a costly, time-consuming, and
flawed program. Each year employers have to comply with a
lengthy labor certification process that is slow, bureaucratic,
and frustrating. They must expend a great deal of time and
money each season in order to prove to the Federal Government
what nearly everybody already knows to be the case: Legal,
dependable domestic farm labor is very hard to find.
In addition, the program forces them to pay an artificially
inflated wage rate. These growers must pay an average of over
$13 an hour in some States and still cannot find enough
Americans willing to take the jobs. Further, they must provide
free housing and daily transportation. H-2A farms almost always
find themselves at a competitive disadvantage in the
marketplace. Agricultural employers who participate in the H-2A
program do so as a matter of last resort and because they want
to uphold the rule of 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 have long supported replacing
the H-2A program with a workable guestworker program. Instead
of encouraging more illegal immigration, successful guestworker
reform can deter illegal immigration and help secure our
borders.
We should enable the large population of illegal farm
workers 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.
In the 113th Congress, I introduced, and the committee
reported, the AG Act. This bill would replace the H-2A program
with a new program that provides growers with streamlined
access to guestworkers and enables dairies and food processors
to participate.
The bill would assure a reliable workforce by creating a
program that is market-driven and adaptable. It would reduce
red tape by adopting an attestation-based petition process. It
would, subject to certain conditions, allow guestworkers to be
employed at will, making it easier for workers to move freely
throughout the agricultural marketplace to meet demand. It
would protect program users from abusive lawsuits.
The bill will not recreate the pitfalls of the H-2A
program. It will not require growers to hire and train unneeded
workers after they have engaged in domestic recruitment and
their guestworkers have arrived, provide free housing and
transportation, or pay an unrealistic or uncompetitive wage
rate dreamt up by Labor Department bureaucrats.
The new program would be, at its core, a true guestworker
program. It does not create any special pathway to permanent
legal status. The bill simply allows agricultural employers to
hire, under the guestworker program, aliens who had been
unlawfully present, just as they can hire any other foreign
national. They would be required to abide by the same
conditions as other guestworkers, including leaving the U.S.
periodically, to ensure that they retain ties to their home
countries.
I have been in discussions with the agricultural community
ever since the committee reported the AG Act over 4 years ago.
The bill that I will shortly reintroduce makes a good faith
attempt to take into account their comments and concerns. We
cannot squander the golden opportunity we have this Congress to
enact meaningful agricultural guestworker reform.
I am pleased to welcome all of our witnesses here today. I
thank the chair for holding this important hearing, and I want
to thank in advance all of our witnesses for sharing their
insights with us today.
Thank you, Mr. Chairman.
Mr. Buck. Thank you, Mr. Goodlatte.
We have a very distinguished panel today, and I will begin
by swearing in our witnesses before introducing them. If you
would all please rise.
Do you swear that the testimony you are about to give
before this committee is the truth, the whole truth, and
nothing but the truth, so help you God?
Let the record reflect that all the witnesses responded in
the affirmative. Please be seated.
I will now introduce the witnesses and then call on them
for their opening statements.
Congressman David Valadao was born and raised in
agriculturally rich Hanford, California. As a lifelong resident
of California's Central Valley, he has been active in
agriculture, on dairy industry groups as well as many local
causes, including Children's Hospital of Central California, 4-
H, Future Farmers of America, and various Catholic charities.
In 2012, Mr. Valadao was elected to represent California's
21st Congressional District, which includes Kings County and
portions of Fresno, Kern and Tulare Counties. In November 2016,
he was elected to serve a third term. Representative Valadao
serves on the Appropriations Committee, including on the
Subcommittees on Agriculture, Military Construction and
Veterans Affairs, and Transportation Housing and Urban
Development. Welcome, Mr. Valadao.
Ms. Frey is the founder and CEO of Frey Farms. Today, she
and her four brothers and their dedicated team of employees
operate farms and agricultural facilities in Florida, Georgia,
Missouri, Arkansas, Illinois, Indiana, and West Virginia. Their
multi-State operation specializes in growing, packing, and
shipping of fresh market produce, including watermelons,
cantaloupes, sweet corn, fall ornamentals, and hard squash. And
Frey Farms is one of the Nation's largest pumpkin shippers.
Frey Farms has been using the H-2A program since 2002. Welcome.
Mr. Wyss was born in Thermopolis, Wyoming, and married his
wife Melanie in 2003. Prior to joining his wife's family
company, Gebbers Farms, as an analyst and government affairs
director, he served as the chief deputy assessor for Spokane
County, worked for various U.S. Bankruptcy Trustee offices, and
temporarily served as a Washington State Senator.
Mr. Wyss also serves on the U.S. Apple Board of Directors,
American Farm Bureau Labor Committee, and is the vice president
of USA Farmers. He attended Texas Tech University and Lubbock
Christian University in Lubbock, Texas. He has two daughters
and one son. Welcome.
Mr. Kashkooli is the vice president of the United Farm
Workers of America, overseeing the union's political,
legislative, and communications work. He has worked for the UFW
for 20 years in California, New York, Washington, D.C., and
Florida. He graduated from Brown University in Rhode Island in
1994, where he first became an active supporter of the United
Farm Workers cause.
Mr. Kashkooli has managed dozens of political races for the
UFW, including the election of county, State, and national
candidates. He continues to play a key role in UFW's
immigration reform efforts.
Each of the witnesses' written statements will be entered
into the record in its entirety. I ask that each witness
summarize his or her testimony in 5 minutes or less. To help
you stay within that time limit, there is a timing light in
front of you. The light will switch from green to yellow,
indicating that you have 1 minute to conclude your testimony.
When the light turns red, it indicates that the witness' 5
minutes have expired.
I will now recognize Mr. Valadao for his opening statement.
TESTIMONY OF THE HON. DAVID VALADAO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Valadao. Good morning, Chairman Buck, Ranking Member
Lofgren, and members of the subcommittee. I appreciate the
invitation to testify before you today during today's hearing,
examining the labor needs of the agriculture industry
throughout the United States.
As the son of immigrants, immigration is an issue close to
my heart. As a Representative of California's 21st
Congressional District and a dairy farmer myself, I understand
the critical role immigrants play in California's agriculture
industry. The success of our agriculture industry depends on
immigrants, and without them the industry's economic viability
and our rural communities will greatly suffer. I am hopeful
that the work done in this subcommittee today will further our
efforts to successfully update our Nation's immigration
policies.
As you know, farming in California is extremely labor-
intensive. Many immigrants come to this country to fill farm
worker positions and do the hard work necessary to care for
livestock and harvest produce in a timely manner. Their
strenuous work makes it possible for families across America to
put food on their tables. However, our agriculture industry
faces a serious shortage of immigrant agriculture workers, and
the truth is most Americans are unwilling to fill these
positions.
The shortcomings of the H-2A program have exacerbated this
shortage. A major issue facing California's farmers and
ranchers is the program's inability to meet the needs of year-
round farmers, including dairy and livestock farms and ag
operations with multiple crops and harvests. We must repair the
system, both for the current workforce and in order to ensure
our agriculture communities have access to the workers they
desperately need for the years to come.
Hardworking immigrant farm workers are not only the
backbone of our agriculture industry, but they and their
families are the heart and soul of many rural communities.
However, it is an unfortunate reality that the policies
implemented by the previous administrations did little to
improve our immigration system. Instead, executive orders and
regulations trapped many workers on this side of the border,
preventing them from returning to their families back into
their home country and imposing unfair ultimatums on those who
contribute so much to our economy.
Further, we must reform the system to provide both employer
and employee choice and flexibility. This can be achieved by
ensuring employees have the freedom to move from employer to
employer without contractual commitment. In doing so, we can
ensure our farmers and ranchers have access to the workforce
they depend on. Without the hard work of skilled immigrants,
California's agriculture industry faces serious consequences
and risks inflicting consumers with high prices and decreasing
our food security as a Nation.
Reforming our immigration system, especially as it relates
to our current and future workforce, is a complex undertaking
and requires a comprehensive approach. For too long, extremes
on either side of the aisle have discouraged real and
meaningful discussion on immigration reform. However, this
subcommittee's commitment to addressing the agriculture
industry's labor crisis does not go unnoticed.
I am hopeful that the work done by this committee will
ultimately culminate in the implementation of a fair and
balanced immigration policies that ensure an adequate immigrant
workforce while continuing to combat illegal immigration.
Again, thank you for the opportunity to testify today. I
look forward to working with the committee, the Congress, and
the administration, to craft a bipartisan solution to
immigration reform that ensures our Nation's safety and
protects our agriculture communities and the economy.
Mr. Buck. Thank you, Mr. Valadao.
The chair now recognizes Ms. Frey.
TESTIMONY OF SARAH FREY, PRESIDENT AND CEO, FREY FARMS; JON
WYSS, ORCHARD OWNER, GEBBERS FARMS; AND GIEV KASHKOOLI, VICE
PRESIDENT, UNITED FARM WORKERS
TESTIMONY OF SARAH FREY
Ms. Frey. Good afternoon. Thank you, Chairman Buck, and all
the members of the subcommittee for the opportunity to be here
today and to share my thoughts and experiences with all of you
in respect to the H-2A program and the need for an expanded ag
workforce.
First, a bit about myself and my farms. My name is Sarah
Frey and I am the CEO of Frey Farms, headquartered in southern
Illinois. We specialize in the multi-State growing, packing,
and shipping of fresh fruits and vegetables. We are best known
as the Nation's largest pumpkin farm. However, pumpkins are
actually a small part of what we produce. We actually grow
millions of watermelons. Our farms and facilities are located
in Florida, Georgia, Illinois, Indiana, Arkansas, Missouri, and
in West Virginia.
Frey Farms is actively engaged with policymakers on a
variety of issues, and we are especially thankful for this
opportunity to share our perspective on the H-2A guestworker
program that we have relied on for 15 years.
American consumers demand locally sourced fruits and
vegetables when in season. Expanding our farming operations and
bringing quality local fresh fruits and vegetables to the
Nation's top 25 grocery retail chains would not have been
possible without a reliable workforce. While expensive and
laden with bureaucratic inefficiencies, the H-2A guestworker
program has been the only practical solution for our company.
Our farms continue to face challenges like most farms. Ours are
in rural areas and rural communities, far away from larger
labor pools needed to fill the jobs that are required and
necessary for harvesting specialty crops.
Many of the specialty crops grown in the United States have
harvest windows as short as just a few weeks, due to the
geographic location and general regional climates associated
with the farmland. Relocating a domestic family every few weeks
is logistically unfeasible. Therefore, lack of access to
domestic labor, combined with an overburdened Federal
guestworker program, means that fruit and vegetable providers
are in a daily struggle to secure an adequate workforce.
The reality is this: Much of the Nation's foreign-born farm
workers do not have proper work authorization, and the emphasis
on enforcement without an accompanying effective legal ag
guestworker program puts our industry and our Nation's ability
to sustainably and affordably feed our people in jeopardy.
I want to be clear. We support strengthening our Nation's
ability to uphold the law. We want our employees to be legally
authorized to work in this country, and that is why Frey Farms
and the produce industry have long advocated for reforms to our
Nation's immigration system to deal with this issue. We believe
those who are working in agriculture without the proper
documentation should be able to make their presence known and
join a guestworker program. When their seasonal harvest work is
finished, these workers could return to their home country, as
the current H-2A program requires them. Transportation could
and would be provided by their American employer.
Moreover, the legality of these immigrant employees would
no longer be in question, and regulations for the proper
execution of the law would be in place. These workers would
then be allowed to return under the lawful rules of a new
guestworker program, and the American farmer could operate
without the stress and anxiety of wondering where their next
group of employees will come from.
The foundation is in place to help ag bridge the gap
between its current supply and the vastly disparate demand for
labor. We urge you to do what it takes to ensure that whatever
immigration legislation Congress debates does not become final
without a mechanism for addressing ag's real and urgent labor
needs. Failure to address these needs will undermine all the
good work Congress has done in legislation, like the farm bill
and its support for specialty crops.
The very essence of agriculture is growing healthy
nutritious food. It all depends on congressional action now to
make the necessary reforms to a guestworker program or overhaul
and create a new guestworker program.
I thank you on behalf of Frey Farms and the ag community
for the continued work and service that you dedicate to our
livelihoods. With that, Mr. Chairman, I am happy to take
questions.
Mr. Buck. Thank you, Ms. Frey.
The next witness, Mr. Wyss, you are recognized for 5
minutes.
TESTIMONY OF JON WYSS
Mr. Wyss. Mr. Chairman and members of the committee, thank
you for having us today and for this opportunity.
Gebbers Farms is a family-run and operated farm that is
been in Okanogan County in Brewster for over a century. We
raise thousands of acres of apples and cherries along the
Columbia River, but we also have cattle and timber, and manage
the thousands of acres of that timber.
Growing up in rural Wyoming, I watched the temporary labor
force come and go in the sugar beet harvest. And that whole
time growing up, I wondered why these immigrants were here
taking American jobs that Americans would do. I would hold this
belief until 20 years later, when I moved to the State of
Washington and met my now wife. Our dating relationship nearly
ended over our differing views on immigration. But to help me
understand the immigration and the programs and the need for
seasonal workers, we went to her cherry farm.
The drive ended in the orchard with an immigrant worker
meeting us and handing me a ladder and a bucket, and the goal
was to start at one end each and meet in the middle. It wasn't
close. In that short timeframe, I learned that my 20 years of
beliefs needed to change.
Without an available domestic labor supply, we entered the
H-2A program in 2010. We quickly discovered that it is not easy
to operate in 2010 like you do in 1950, in the fifties, when
the program was designed by Dwight Eisenhower. Agriculture's
production today is nothing like 1950. 1986 update did not fix
the program. So we are asking you to update the current H-2A
program to something that is functional and workable.
Due to the nature of our crops, we have to apply for four
separate contracts. That means filing those four contracts with
four different agencies and four opportunities for delay. Our
first year in H-2A, we hired 300 workers from Jamaica and 750
from Mexico, and we continue to increase the number of workers
each year, even though wages continue to climb. Fortunately,
because we pack all of our own fruit, we are able to use H-2A
in our packing house and supplement the continued loss of
domestic labor. Other growers aren't so fortunate and don't
have access to the H-2A program, and Congress should allow more
flexibility for other employers to join.
Once our H-2A workers arrive, they are paid the government-
mandated Adverse Effect Wage Rate. In Washington State, it is
$13.38 per hour, one of the highest in the country. The prior
administration changed the rates at will with little or no
advance notice, which caused significant challenges to our
payroll, forcing us to reprint all contracts and updating the
wage and hour posters at a significant expense.
Some would say, well, if you would just pay more, you would
get more workers. But I would point out that we are already
paying over $13 an hour, and the local retailers and other
businesses in our community are paying minimum wage of $11 an
hour. So if it were about wages, I would ask, why are people
taking the other local seasonal jobs than those at the farm,
where we also provide housing and transportation.
In 2014 and 2015, our county suffered back-to-back massive
wild fires, burning nearly a million acres, of which a majority
was timberlands. First, there were two critical impacts that
impacted our labor supply. First, the fires substantially
increased the need for seasonal labor for reforesters and
increased the need on the public and private sector lands. Our
own personal timberlands, we have to replant over 8,000 acres.
However, that requires an H-2B visa. The Department of
Agriculture oversees forestry, so it would make sense that
reforestation would fall within the Department of Agriculture.
Second, the fires took an additional toll on our
agriculture workers, because they shifted from farm work to
reconstructing the 300 homes that had to be rebuilt within the
area. We live in a community of 2,100, and our county is 5,000
square miles, but only has 41,000 total people. So you can see
the transfer that has occurred.
The H-2A program does provide a legal stable program for
workers to come to our farm, but the program is not reliable
and has been plagued with inefficiencies and delays by DOL and
others. For example, the entire visa system was down at the
State Department 2 years ago. That caused a backup of thousands
of workers who couldn't get their visas, and the employers were
left in some cases without workers for weeks. In our industry,
we pick, pack, and ship every cherry we have in 45 days. A
delay of weeks would have made us miss our entire packing and
harvesting season.
It is important to note, though, that our community has
rallied around these H-2A workers and they have actually become
part of our community. Each August, our Jamaican H-2A workers
celebrate the Jamaican Independence Day at one of our labor
camps. The workers prepare authentic Jamaican food, play music,
and host a soccer tournament. The event is open to the public
and serves as an annual fundraiser to support charities back in
the home country of Jamaica.
Our local sheriff told me before I came out, I remember the
days when we used to come to the labor camps a couple times a
week and we were picking people up. Now our off-duty officers
are coming to your labor camp to pick workers up to go to
church. There is a significant difference that has occurred, a
change that is occurred as our workforce has changed.
I leave you with this thought: Washington agriculture
produces 300 commodities, at a value of $68 billion, and
produces 200,000 jobs. That is larger than Boeing, $15.1
billion of that value is commodities that are exported out of
the State of Washington and the ports, which makes us truly the
refrigerator to the world. Without access to a legal stable
supply of labor through some type of worker program, 12 percent
of the Washington State economy is at risk.
I look forward to working with this committee, the rest of
Congress, and the administration, to move forward with a
permanent solution on this issue. And we are here for each of
you to be a resource and answer questions as we go along the
way. Thank you.
Mr. Buck. Thank you, Mr. Wyss.
Mr. Kashkooli, you are now recognized for 5 minutes.
TESTIMONY OF GIEV KASHKOOLI
Mr. Kashkooli. Thank you. Thank you, Chairman Goodlatte and
Ranking Member of Judiciary Conyers.
The Chairman. Is your button on?
Mr. Kashkooli. Thank you. Thank you, Chairman Goodlatte and
Ranking Member of Judiciary Conyers, Acting Chair Buck, Ranking
Member Lofgren.
My name is Giev Kashkooli, and I am a vice president with
United Farm Workers, the Nation's first and largest farm worker
union. We work with farm worker organizations in close to 20
different States on the issue of immigration.
A growing problem in American agriculture is the difficulty
in matching willing workers in the United States with
agricultural employers trying to hire people so that we can
continue to feed the United States.
I was really moved by the Acting Chair Buck's words when he
said that labor is the lifeblood of the agricultural industry,
the lifeblood of the agricultural industry. And while Mr. Wyss
and Ms. Frey and I have been working on this issue to change
immigration for over 10 years now, each of us, I don't think
any American has stopped eating over the last decade while we
haven't finished fixing immigration. The issue has not been--
although we disagree on many things, we have been able many
times under different administrations to come together on an
agreement.
The issue is matching willing workers to willing employers.
Again, because we are talking about the lifeblood, this is
tough work. The watermelons harvested on Ms. Frey's farm, those
are 3- to 4-pound watermelons that are picked by crews of
workers who literally pick tons of watermelons in a day's work,
over and over again.
To do the cherries, right, close to the border of Canada,
it gets to freezing temperatures in the winter with the folks
doing that work. By the summer, it can get deadly hot, and I
mean literally deadly. Dozens of farm workers around the United
States have died from the basic lack of water and shade that
farmers that are not playing by the rules like Mr. Wyss and Ms.
Frey apparently are.
Because we are talking about human beings, that is why we
go through four agencies. We are talking about people coming
into the United States from a different country. We are talking
about making sure that U.S. citizens and legal permanent
residents have a chance to get the job. Close to half of the
workforce does have U.S. citizenship or legal permanent
residence. And for those U.S. citizens who are willing to take
on the work who maybe are outside of it, that is why that 50
percent rule is in place. If someone is willing to come and
pick the crops and they are a U.S. citizen and legal permanent
resident, they should have access and be able to get that job
so that we eat.
The reason it is free housing is because, as Ms. Frey
described, the jobs sometimes are 2 to 4 weeks. I don't know
too many people who are prepared to rent an apartment, first
and last month's rent, for just 2 to 4 weeks. That is why free
housing is important. The reason that housing needs to be
inspected and not just attestation is because just a couple
months ago, in Arizona a farmer tried to house people in
converted school buses, 100-degree heat, no ventilation,
converted school buses, and expected people to cook their meals
in those converted buses.
The reason there is litigation is because a farmer, an
administrative law judge found in California a farmer was
discriminating against U.S. citizens applying to work as
workers, was insisting that those same workers give kickbacks
in order to work off of their meager dealings and a whole other
host of issues. That is why that rule is in place.
The Adverse Effect Wage Rate, although it has a complicated
name--and that is the wage rate that is required under the H-2A
program--is actually not that complicated. It is the average
wage rate, and it is determined by a survey that the government
does with current agricultural employers to determine the
average. And, as any math teacher will remind us, the way the
average works is if you pay somebody less than the average,
then your group average is going to go down. So the reason you
have an average wage rate is to make sure that the U.S. workers
and legal permanent residents, their wages don't go down.
There are some facts that we all agree on. The current H-2A
program has no cap. The program has doubled since 2012, as Ms.
Frey's diagram shows, and tripled in the last decade. It is up
30 percent over the last year. And the Department of Labor--
this one we may agree with, but it is a fact the Department of
Labor has a timely approval rate of 98 percent over the last
year.
Fortunately, there is a positive workable solution. The
first step should be to honor the people who are the lifeblood,
as Chairman Buck said, of our system. Allow farm workers,
professional farm workers who have worked 100 days in the
previous 2 years to earn legal status. Congressman Gutierrez
has a bill that does that, H.R. 2690, and there is over 50
cosponsors. Thank you.
Mr. Biggs. [Presiding.] And now I turn it over to the
chairman of the Judiciary Committee, Mr. Goodlatte.
Chairman Goodlatte. Thank you, Mr. Chairman.
Let me address my first question to Mr. Wyss and Ms. Frey.
Isn't one lesson that we learned from the 1986 legalization of
illegal immigrant farm workers, when they receive permanent
residence they leave the fields for more attractive jobs in the
cities? In fact, Philip Martin, professor of agricultural
economics at the University of California at Davis, found that
by 1997-1998, the percentage of crop workers who had been
granted permanent residence through the 1986 act had fallen to
only 16 percent.
Isn't it the case that if Congress were to again grant a
special pathway to citizenship to illegal immigrant farm
workers that growers would soon be left in the lurch? Mr. Wyss.
Mr. Wyss. Thank you, Mr. Chairman, Congressman Goodlatte. I
can only speak for our farm and what happened with us after
1986. We did go through the legalization program and did have a
considerable number of our workers adhere to that and receive
their citizenship. Many of them became actual business partners
with some of the members of the family and now own their own
orchards. And so they have moved off the farm, but they have
become orchard owners on their own.
We did see a shift after a few years of the workforce
transitioning into other jobs, you know, in the hotel,
restaurant industry, construction. The area in which we live,
the labor pool is small and they had already lived there, so
they didn't actually leave the area, but some of them did take
other jobs. But, like I say, I can go through the list. Frankel
Lucas, he now became a citizen through that program----
Chairman Goodlatte. You don't need to. I turn to Ms. Frey.
I have got a couple other questions and I have a limited amount
of time.
Ms. Frey. So your question--could you repeat the question?
Chairman Goodlatte. The question basically is, if we were
to have an amnesty program like we had in 1986, my
understanding from the American Farm Bureau is that about a
million people who worked in agriculture were given legal
status, and about half of them left farm work because they
could work anywhere. They could drive a cab. They could own
their own business, as Mr. Wyss suggested. And it didn't solve
the problem. In fact, I would argue that it enhanced the
problem of illegal immigration.
Ms. Frey. Well, I think that it is pretty common knowledge
we all want a better life for our children, and even those who
came here illegally and worked in agriculture. Yes, it is true,
people do leave ag once they have worked here, because they do
want a better and different life for their kids.
So it is an unfortunate thing from this side of the table
when we need an expanded ag workforce, and that is why I think
broadening or expanding a guestworker program is really our
solution, because it is going to be very difficult to keep
people working in agriculture long term.
Chairman Goodlatte. Thank you. As someone farming in
multiple States, what have you been observing regionally as far
as the growing use of the H-2A program?
Ms. Frey. I found at Frey Farms, we used to be in the
minority. We are headquartered in southern Illinois. I didn't
start the company in a border State. I started the company in
the Midwest. And most of the fruits and vegetables we produce,
the biggest volume, the largest volume comes out of the
heartland.
And what we--you know, throughout the years, we didn't have
access to an urban population of ag farm workers, so we had to
participate in the H-2A program. It was out of necessity when I
was first building the company. Today, though, we are seeing
those numbers increase with employers.
As workers are leaving agriculture, more ag employers are
looking to and for reliable guestworker solutions, because
people are leaving ag. Workers are leaving ag. And so we have--
you know, we have noticed that throughout the years, where we
used to be in the minority, we are no longer. And even States
like California, many growers out there provide or request
hundreds if not thousands of H-2A visas, because there simply
isn't enough labor to fill their positions.
Chairman Goodlatte. So you think the solution is to improve
the guestworker program?
Ms. Frey. Absolutely. Absolutely. Especially--our company,
our business, our farms are different, because, like I said, we
are not located in border States. We don't have access to the
populations of ag workers, such as the State of California or
Arizona. You are talking about Illinois, Indiana, Arkansas,
Missouri, Iowa. We simply don't have access to the amount of
workers needed in these rural areas in such a short amount of
time.
Now, if we were offering--if we were able to offer year-
round employment, that would be very different and we would be
able to fill those positions, I believe, with American workers.
But it is simply not the case, because we are growing these
crops in rural areas where we simply don't have the population
to be able to support the number of harvest jobs needed for
such short seasonal time windows.
Chairman Goodlatte. Thank you.
Thank you, Mr. Chairman.
Mr. Biggs. Thank you. I now turn the time over to the
ranking member of the subcommittee, the gentlelady from
California, Ms. Lofgren.
Ms. Lofgren. Thank you very much. I think it is important
to separate out what used to be and what is, in terms of
looking forward. It used to be--and we had hearings on this. We
had a lot of complaints, that the H-2A program was always late.
I think a majority of the workers arrived after the harvest was
to be collected. That is no longer the case. In the last 2
years, more than 95 percent of the applications have been
approved. Ninety-eight percent of them were on time. So that is
been a transformation of that program, and we ought to proceed
with that understanding.
I just listened carefully to the testimony, and, Ms. Frey,
you suggested that the current undocumented workers step
forward, become H-2A workers and go back to their country, if I
heard you right. And I think we really need to make a
separation between what we do with the individuals who have
been here and what we are going to do proactively for an
additional workforce, because 55 percent of the farm workers
who are undocumented here have been here more than 15 years.
More than half of them have children who are U.S. citizens.
So the idea that people who have been here 15 years or 20
years, have U.S. citizen children, they have grandchildren,
that they are going to step forward and go to some foreign
country, you know, it is just not going to happen. And so we
are not solving the problem. And then we need to think about
how are we going to preserve or craft a program that works and
that--for our future flow of farm workers. So I think the two
solutions are not the same, if I may.
I am interested also in not just timeliness, but how the H-
2A program works and doesn't work. It is my understanding that
just yesterday, there was an amendment in the appropriations
bill to allow the H-2A program to be used to fill permanent
positions.
And I am wondering, Mr. Kashkooli, what do you think that
would do to labor market stability in the current ag worker
system, that amendment?
Mr. Kashkooli. We were stunned to learn that yesterday's
Appropriations Committee chose to legislate on an issue of
jurisdiction here, so that year-round workers would be allowed
to apply to this H-2A program. It was really a surprise. Again,
Ms. Frey and Mr. Wyss spoke eloquently.
Ms. Frey spoke about the need on seasonal work. What
yesterday's action did speaks to year-round work in a single
location, like a dairy. And the dairy industry is a place--in
any other year-round operation, you are competing in the free
market for workers. The dairy industry is an industry where
literally dozens of workers have died every year, some in the
most gruesome ways: A gentleman named Randy Vasquez in
Washington State just 2 years ago, and then just last year a
gentleman named Roberto Vasquez, the same last name, not
related, but same fate, died drowning and suffocating in a
manure pool. That company where he worked was fined $5,000 for
lacking some basic protections on a safeguard that every dairy
operation knows that these manure pools exist.
So the notion that the H-2A program would be legislated
yesterday in an Appropriations Committee for workers who are
working year-round was stunning to us. We think it more
appropriate that the Agricultural Worker Program Act, offered
by Congressman Gutierrez, H.R. 2690. This would take the
current professional workforce who have worked in agriculture
for over 100 days, and then if they continue to work in
agriculture over the next 5 years 100 days a year, then they
would be able to get--apply for permanent legal status.
That creates an incentive for that group of people to stay
in agriculture. I think Congressman Goodlatte overstated the
issue about workers leaving in 1986. More reliable data
suggests only 1.9 percent of the workforce left annually over a
20-year period. That said, the Agricultural Worker Program Act,
by having people be able to earn legalization would be able to
move into jobs that are year-round work and they would have the
skills to do it.
Ms. Lofgren. As a matter of fact, if the Department of
Labor survey is accurate and I assume it is, it is actually
less percentage than I had been saying over the years. It is a
little over 50 percent that are undocumented. But half the farm
workers are documented or Americans. So certainly that is a
factor to weigh in.
Mr. Kashkooli. In truth, I think it is a little difficult
to know just exactly how many people have legal status or not.
But what we know is that it is probably around half that have
citizenship or legal permanent residence.
Ms. Lofgren. My time has expired, so I yield back, Mr.
Chairman.
Mr. Biggs. Thank you. I recognize Mr. King from Iowa.
Mr. King. Thank you, Mr. Chairman.
And I thank the witnesses for your testimony. I am sitting
here thinking about the bigger picture, and it occurs to me
that each of the witnesses have a sliver of this American
economy to testify to, and that is the scope of your experience
and your business. And yet this Congress has the responsibility
to look at the entire 360-degree scope of the destiny of the
United States of America.
And so how do these pieces of this jigsaw puzzle fit into
the overall picture and what works out best for the future of
our country? And it starts me thinking about some numbers that
I haven't heard here. One of them is this number, 95,102,000.
That is the number of Americans who are of working age not in
the workforce. And there is another number, 7 million. That is
the unemployed Americans. So that is 102 million Americans of
working age not in the workforce. Then I have some couple of
months ago asked my staff, carve that number down for me,
because there will be some people in that that are disabled and
others that have other obligations that aren't able to work.
So what if we were mobilizing America on, say, a World War
II status, where we put everybody to work that we could because
we needed to do everything possible simultaneously. We had an
unemployment rate then of 1.02 percent, by the way.
But if you carve that number down of 102 million, it still
gets down to about 82 million people there that aren't
contributing to the GDP from the production side of this scale.
And so it starts me thinking about how this works in a country
if we are bringing people into America to do work that--nobody
has quite said it here--that some say Americans won't do. And,
of course, I would reject that, because I can't find anything I
haven't actually done that wasn't, you know, too distasteful
for me to do if it needed doing. And by the way, if it paid
well enough, that helps a lot also.
So roughly one out of three Americans are not in this
workforce, and yet I continually hear the request that we
should bring more people into America. And by the way, they
aren't all going to be working, but probably a higher
percentage of them than they are in America. So if one out of
three aren't working, Marilyn and I raised three sons, and they
got paid for the work they did, but also they got an allowance
earlier in life.
And I am just wondering what it would be like if one of
those sons had said, I am not going to do my chores, I am not
going to mow the lawn, I am not going to get the mail, I am not
going to change the oil on that bulldozer, and I am not going
to pick up that shovel and dig that ditch, all the things we
did in the construction business. I want my brothers to do that
work and I want you to pay me my allowance anyway. You know
that wouldn't last one day, and pretty soon that one that
wouldn't work would be the one doing all the work until he
learned the lesson to carry his share of the load.
So I am wondering how a country like the United States of
America, with our excellent work ethic that we have and this
spirit of entrepreneurship that we have, how we can tolerate
what is going on? How we can be taxing the producers of America
and transferring that wealth over onto the couches of America
where people aren't getting off of it to go to work sometimes
for three generations, and then at the same time press that we
should bring people into America to do this work that we
already are subsidizing people sitting on the couch, paying
them not to do that work?
And so I think imagine what America would be like today if
we were a continent unto ourselves, say similar to Australia,
and we didn't have a land bridge to the north, south, east or
west, and it was thousands of miles of ocean, and we had
secured our borders, and then we had the labor force that was
within us or the labor force that was brought in legally into
the United States of America.
Now I will narrow it down to that which you do have focus
on, and I am going to ask Mr. Wyss, because he has volunteered,
and that is this: What would America look like if we hadn't
evolved into this massive dependency on illegal labor? Would
the fields grow up to weeds? Would we have more automation?
Would there be more people working in agriculture? Would there
be higher wages, higher benefits? Would the standard of living
and quality of life be leveled more?
And I am going to go to Mr. Wyss, as I promised, for the
answer to that.
Mr. Wyss. Thank you, Mr. King. I think your analysis is
very good. And one example that I would give for our area, the
reason that we jumped into the H-2A program the way we did is
we followed all the government regulations and we received an
ICE audit, and so we had to let a considerable number of our
workers go. At the same time that that happened, a sawmill
closed in our area less than 20 miles away and 200 people were
without employment. We offered the job to all 200 people from
the sawmill to come work in our agricultural fields, and they
chose not to take the job.
Mr. King. I am sorry, excuse me. I have only got 14 seconds
left.
Mr. Wyss. They wouldn't take it because they stayed on
unemployment.
Mr. King. I understand. And we have hired employees for 42
years, so believe me, I do understand.
I will just make this point into the record at the close of
this time as the seconds tick down, and that is this: That Mr.
Goodlatte stated that he would like to see these workers go
back at least once a year. I believe the best program to assure
that that happens is a bonding program, so that the employment
agencies could ensure that this does happen, and that would
give a high degree of comfort to the program. So I want to put
that suggestion in.
I appreciate everybody's testimony, and I yield back the
balance of my time to the chairman.
Mr. Biggs. Thank you.
At this time, Mr. Gutierrez.
Mr. Gutierrez. Thank you, Mr. Chairman. And I thank Mr.
Conyers for allowing me to proceed with questions. Thank you,
Mr. Conyers. And I want to thank all my colleagues for having
cosponsored the bill on the democratic side and look forward to
working for a bipartisan approach in the future.
First of all, let's not go into tangents here about the
American government paying people to sit at home on their
sofas. I don't know where that program is, but I guess I will
search for it. That is not the problem here. You see where we
are going, right? The future of America, and people are lazy,
and if they weren't lazy, we wouldn't need a guestworker
program.
Look, I want to make clear to everybody Ms. Frye and Mr.
Wyss have been invited by the majority to come and speak here.
And I am willing to be contradicted, but I listened attentively
to what you had to say, and it seems to me that Mr. Wyss said
that he needs these workers to come because the workers who
live in the State of Washington would prefer to make $11 an
hour working in the service industry than making 13 and having
a home.
And Mrs. Frye made a little bit different argument if I
listened correctly. Ms. Frye's argument is there is just not
enough people where she farms, there is a lot of acres to farm
and not a lot of people to do the farming. So we need to bring
a population. It isn't that people are lazy out in middle
Illinois and in Virginia and in Georgia, there is just not
enough of them. So we need to bring people in. And I got to
tell you, I don't see people--did I get it right, Ms. Frye?
Ms. Frye. You nailed it.
Mr. Gutierrez. Okay. Did I get it right, Mr. Wyss?
Mr. Wyss. Yes.
Thank you. I just want to make sure--I mean, my friend,
Mr.--they are going to just say, well, you two are in the
same--right? You are always together, so--but these are--the
Republicans invite farmers to come before this committee to
tell us what their problems are, and ask us for solutions, and
what we do is we talk about people on a couch getting paid by
the government and bonds.
Mr. Wyss, if I heard you correctly, you said there were,
like, four different agencies. Do you want to add another
agency, a bonding agency, to get your workers?
Let me ask the question--Ms. Frye, do you have workers that
return to you, year in and year out, to come and work your
fields?
Ms. Frye. Every year for the past 15 years.
Mr. Gutierrez. So they come, they work legally under the
program----
Ms. Frye. Correct.
Mr. Gutierrez [continuing]. Leave and then come back to do
the crops the next year?
Ms. Frye. That is accurate.
Mr. Gutierrez. You look forward to them coming back?
Ms. Frye. I do.
Mr. Gutierrez. Do you see them as farmers?
Ms. Frye. I see them as farmers, and I see them as family.
Mr. Gutierrez. Thank you. You see them as farmers, and you
see them as family.
Mr. Wyss, you got people that come back regularly, know
your farm, know your foremans, know your family?
Mr. Wyss. I have about a 98 percent return rate.
Mr. Gutierrez. Ninety-eight percent. So they come, they
work, and then they come back the next season. And, with you,
it would probably be, like, 6, 7 weeks, right? Cherries, 6, 7
weeks?
Mr. Wyss. We bring workers in for 10 months out of the year
for different contracts.
Mr. Gutierrez. For different contracts. But, like, the
cherry season has a certain----
Mr. Wyss. May to November.
Mr. Gutierrez. May to November.
And, Ms. Frye, do you have shorter windows of opportunity?
Ms. Frye. We do. Some harvest seasons are only 4 weeks.
Mr. Gutierrez. Ms. Frye, did you work in the fields when
you were a young girl?
Ms. Frye. I did. Every day.
Mr. Gutierrez. Tell me what you did.
Ms. Frye. I harvested melons.
Mr. Gutierrez. You harvested melons. Watermelons?
Ms. Frye. Watermelons, cantaloupes, sweet corn.
Mr. Gutierrez. Mr. Kashkooli talked about how back-breaking
the work. So there is the union representative here, right, the
one that wants to organize your workers and negotiate with you
in the future. Would you agree with them that it is back-
breaking work?
Ms. Frye. It is very hard work.
Mr. Gutierrez. Is it hot?
Ms. Frye. It is very hot work.
Mr. Gutierrez. Thank you.
So we have people, the farmers, have come here to represent
their workers as, number one, people representing the view of
the majority, that have been invited by the majority here to
come and speak to us. People that work hard. They are farmers.
They are family. They come back all of the time. They like
them. The police come by and then take them to religious
activities. I imagine they take them to the local churches.
That is the kind of community that they have developed. I want
to see that community develop.
And, look, let's stop talking about oh, well, we legalized
the illegals back in 1986, and then they all ran off the farms.
Half of the people working the farms are legal. They are
citizens and permanent residents. So they didn't race off of
the farms. We just need more people.
I am really happy. This is what my mom--I want the
majority--here is what my mom--I think this is a very American
expression, but she didn't say it in English. And that happens
a lot in America, that we get American expressions that aren't
in English. They get told. She told me, she said, [speaking in
foreign language]. Study hard now, as a child, so you won't
have to work so hard as an adult. That is what we do. That is
why I sent my daughters----
Mr. Biggs. Gentleman's time has expired.
Mr. Gutierrez [continuing]. To college. That is what we do.
Let's stop saying, oh, we can't do this program because then
people are going to want to do better for themselves. It is
America. They should be able to do better for themselves.
I thank the witnesses for coming before us.
Mr. Biggs. Thank you.
And now the chair recognizes Mr. Johnson from Louisiana.
Mr. Johnson. Thank you, Mr. Chairman. Thank all of you for
your valuable testimony. This is really helpful. I am from the
State of Louisiana. Agriculture is a big deal. And we have the
same concerns that you do.
And, Ms. Frey, first question for you. You mentioned how
difficult it is been for you in the farm to find long-term
employment from local citizens within the community. If I gave
you the opportunity and just pitch you a softball, what would
you say is--I mean, specifically to elaborate on the H-2A
program, what can we do to make it more workable for the farm?
Ms. Frye. Specifically, I think the wage rate needs to be
addressed first and foremost. If you are an employer
participating in the H-2A program, you are at a competitive
disadvantage because your wage rates are much higher. Not only
your rates are much higher, you have to provide housing. You
have to provide transportation. All of which is perfectly fine.
No one participating in the program, I think, has a problem
with doing any of that. But what we would like to see is a more
level playing field where all workers are paid wages that are
similar.
Mr. Johnson. When you are in need of employment, how do you
advertise for employment? I mean, locally, domestically. What
is the process you do to try to find local workers?
Ms. Frye. So by law, participating in the H-2A program what
we have to do is we actually have to advertise for the jobs
that we anticipate having in the upcoming season. So we put ads
in the newspaper. We run them for a certain period of time. I
think we even do some--potentially some online advertising. We
provide a notice to the number of jobs that we have and what
types of jobs they are so that they can be filled by domestic
workers.
But as I stated before, we farm in very rural areas, and we
simply don't have the population to support the high number of
jobs that we need for such short seasonal time windows.
And I will say--and I do feel like I need to add--that the
H-2A program bringing in the temporary workers not only
benefits the communities in which we bring them into, because
the workers get paid a lot of money, and they spend a lot of
money in these communities and local businesses, et cetera.
In addition to that, as we are able to--I mean, if you
noticed in my opening testimony, we farm in seven States. It is
actually well over seven States. We would be--every time we
increase the number of acres that we grow, pack, ship, and sell
direct to retail markets such as Kroger, Wal-Mart, Target, et
cetera, we are creating domestic jobs that are at a much higher
level. So if I am able to grow an extra 300 acres of produce
that I can sell directly to Whole Foods, or Publix, or Meijer,
whoever, then I need someone to manage that account with that
retailer.
I need more purchase order clerks. I need more shipping and
receiving managers. I need more forklift drivers. I need more
farm managers. These are all domestic positions that I am able
to create every time I bring in more workers. So I would say,
to answer your question, the wage rate needs to be addressed.
And, in addition to that, we need access to even more
guestworkers.
Mr. Johnson. I appreciate that.
Mr. Wyss, similar question for you. Obviously, we are
concerned--we want to reduce the burden on the farmers when
there is a shortage of labor like this. And I wanted to ask you
the same general question, specifically what do you think--I
mean, the wage rate is obviously part of it. But are there
other things, for example, in modernizing the H-2A visa
process, do you have any recommendations on how we can
streamline the application process? Because I know it is a big
burden.
Mr. Wyss. I think Ms. Frye covered it very well as to some
of the major problems. But also to streamline the program with
the application process, I mean, I think we could do a lot in
the application process to make that more streamlined. And I
think, me personally, the Department of Labor is who oversees
this program. But they are also the program auditor. So you
have the same agency who approves you is the same agency who
audits you.
Moving the program over into the farm--USDA, would probably
be very helpful because they have a better understanding of
OnFarm. They run all the farm programs with us already. I think
that would be a massive help.
Mr. Johnson. I have got sixteen seconds. But I will just
pitch one more question, and see if you can answer real quick.
I know you talked about the I-9 inspection and audit that you
all went through. Any suggestions there on how that process
might be improved, that could have helped in that situation?
Flexibility in responding, for example. Would that help?
Mr. Wyss. Well, entry to the program. So after our ICE
audit we had to enter the program overnight and you have to
wait a hundred days to get a worker. We needed them the next
day. So if they could shorten that process down to like what
they do with H1B, H2B, in an attestation base, we could have
received those workers when we needed them and not waited a
hundred days.
Mr. Johnson. Thank you all for your testimony. I yield
back.
Mr. Biggs. Gentleman's time has expired.
I will recognize the ranking member of the Judiciary
Committee, Mr. Conyers.
Mr. Conyers. Thank you very much. I apologize for missing
the original testimony. But I do have a couple of questions
here. Ms. Frye--wait a minute. Or Mr. Kashkooli, in Ms. Frye's
testimony I was told that she outlines a proposal for allowing
undocumented farm workers to become H-2A workers. Would the
United Farm Workers support such a proposal in your view?
Mr. Kashkooli. We wouldn't support that proposal. I think
what makes more sense is Congressman Gutierrez's proposal that
takes the current workforce who are professional farm workers
and allows them to get a blue card or temporary legal status.
That actually solves the problem that I heard more directly,
the issue that I have heard Ms. Frye, in particular, address,
which is they are in areas where there are not a large number
of workers, and so therefore it is hard to attract workers.
The blue card giving professional farm workers legal
status, and also an incentive to stay in agriculture would
allow the market to work and allow it to work more efficiently
by taking a million or so farm workers who would be newly
acquired with blue cards and have them have an incentive to
match themselves to a more willing employer. I think that is
the more logical step. And I also note that it has a lot more
support in Congress than the other proposal.
Mr. Conyers. Thank you. Now, would allowing existing farm
workers to obtain temporary immigration status satisfy your
interest in addressing the current workforce?
Mr. Kashkooli. Yeah. It would. I think that is what the
agricultural worker program does, program act does, H.R. 2690.
Mr. Conyers. Finally, while the majority of the
agricultural workforce is undocumented and in need of an earned
legalization program, there is still several hundred thousand
legal immigrants and citizens who still seek employment in
agriculture. With the necessity for jobs in the forefront of
the political debate, we need to assure these individuals are
not harmed under this new policy. How would these legal
immigrants and citizens be affected by a new temporary worker
program like the ones that other witnesses are proposing?
Mr. Kashkooli. I can't speak to what other witnesses speak.
But I will speak to the one that Chairman Goodlatte suggested.
Eliminating the 50 percent rule means that U.S. citizens and
legal permanent residents who want to work in agriculture
wouldn't be able to. So we think that is a mistake.
Reducing wages below the average wage that employers
themselves have submitted to the United States Government, that
is a mistake. By definition, that will reduce the wages of all
farm workers.
Removing free housing, that is a mistake. As Ms. Frye
eloquently suggested, bringing people in for short seasons of
work, if you don't provide free housing, where is it that this
group of people miraculously are going to show up that no one
else, U.S. citizens, are willing to do the job? Where is it
that they are going to live. We know from history where they
are going to live. They are going to live on riverbeds, on
school parks. That is where folks live. And, unfortunately, in
some cases, that is where people are living now without homes.
So making those types of changes make no sense. Now, doing
something online as opposed to forced reams of paperwork, that
makes sense. Having a transparent so that every employer knows
which labor contractor has been found guilty of the types of
things that were found in Arizona where people were housing in
schoolbuses.
Right now, if Ms. Frye or Mr. Wyss wants to look up a new
labor contractor, they don't know. There is no good way for
them to find out if they have been found guilty of housing
people in schoolbuses or cheating people on wages. So that
would be a simple thing to honor employers who have done the
right thing and to make sure U.S. workers and new workers come
into the United States. And, if I can, I just want to address
Congressman King's comment. He said that if you had one of your
sons not doing work. Let's do the other one. If one out of 150
people in the United States is making sure to feed everybody--
and our industry is the only industry in the United States that
impacts everybody. Everyone eats. If one out of 150 people had
worked for 15 to 20 years making sure all of us fed, doesn't it
make sense, by Congressman King's own logic, that that would be
the person you would want to reward, not the one you want to
punish?
Mr. Biggs. Thank you.
Mr. Conyers. Thank you very much.
Mr. Biggs. The gentleman's time has expired. Thank you, Mr.
Conyers.
And I recognize myself for 5 minutes to ask a few
questions. And I will start with you, Mr. Kashkooli. What is
your organization's estimate of the number of currently
unauthorized farm workers in the U.S.?
Mr. Kashkooli. As I mentioned with Ms. Lofgen, those
numbers are a little challenging. But what we would guess is
there is roughly 2 million farm workers, professional farm
workers, in the United States. Government statistics suggest
that about half don't have legal status. So that would mean
that the number is about a million people.
Mr. Biggs. And, Mr. Kashkooli, you have called for
increasing farm workers protections. Can you tell me what
provisions are included in the Agricultural Worker Program Act
that might be addressing those issues that you have identified?
Mr. Kashkooli. Well, the biggest thing that the
Agricultural Worker Program Act does is it allows professional
farm workers to earn legal status. That one step, taking people
out of shadows means that that group of people can get a
driver's license and move more freely, move to jobs in other
parts of the country. There aren't any other protections beyond
that other than earning that legal status. But that is a big
one. Because it means you are not worried constantly about
being deported from the country. And it means that you can move
freely and seek employers that are treating you correctly.
So you are not undermining U.S. workers and legal permanent
residents who are more prepared to speak out. So that is the
only protection that the Agricultural Worker Program Act, but
it is a very, very, very important one.
Mr. Biggs. The next question is for either or both of you,
Ms. Frye, Mr. Wyss. Chalmers Carr has said that many farmers
prefer to employ illegals because it is cheaper and they remain
off Federal and legal radars. Do you get the sense that the
government is at least providing some kind of perverse
incentives for hiring illegal immigrants rather than use the H-
2A program?
Ms. Frye. Yes. Yes. The Department of Labor is like family.
They stop by all the time.
Mr. Biggs. Elaborate, will you, please, both?
Ms. Frye. It seems like every time we turn around. I mean,
go back maybe 3, 4 years ago, on July 23rd, we were visited by
Homeland Security, the Department of Labor, the--let's see
here, OSHA, the FDA, and the Migratory Farm Workers legal
counsel in 1 day, five agencies. Five agencies in 1 day. Oh, it
was State and Federal DOL as well.
So, yeah, I think that when you do participate in a program
such as the H-2A program you have a big target on your back.
And, you know, folks come by and, you know, they check on you
early in the season, which is great because--you know,
obviously, these--you are bringing in foreign workers. That is
completely understandable. And they want to make sure housing
is inspected and everything is good. That is great. But then
they don't stop coming. And it creates a challenge.
And I think that employers of the H-2A program have
actually been targets for a lot of audits. And that is
unfortunate. Because, I tell you what, the folks who are using
the H-2A program in this country are American farmers who love
their country, want to uphold the law, treat their workers
fairly, pay them an incredible wage rate, and really just want
to grow fruits and vegetables in a lawful way. The idea that
those growers have been targeted--which they have--and I can
speak to my own experiences--versus who you, Mr. Kashkooli,
were talking about earlier, contract laborers--this not
farmers.
You weren't talking about a farmer earlier making people
live in schoolbuses. Okay? You are talking about contract
laborers if I understood you correctly. So this could be anyone
who has a group of workers working under them, paying them
whatever they want to pay. The workers have no direct
relationship whatsoever with the farmer whose fruits and
vegetables they are actually harvesting.
You know, so I think those are the folks that probably need
to be getting looked at a little bit harder versus people who
are participating, growers who are participating in the H-2A
program, who are trying to abide by the law and treat workers
fairly, and pay a loaded wage rate between 15 and $16 an hour.
That is just my observation.
Mr. Biggs. Well, thank you. Thank you. And I am glad I
asked you to elaborate as well.
Mr. Wyss, she elaborated for you as well. So you don't need
to at this point.
Mr. Wyss. She is good. I would have said the same thing.
Mr. Biggs. And my time is now expired as well.
And as we get ready to close this hearing, thank you. I
thank all the participants who have come and testified today,
and appreciate your testimony, members of the committee as
well. And, with that, we are adjourned.
Mr. Wyss. Thank you so much.
[Whereupon, at 3:56 p.m., the subcommittee was adjourned.]