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UFW Written Statement on House Judiciary Subcommittee on Immigration Policy and Enforcement Hearing on “The H-2A Visa Program – Meeting the Growing Needs of American Agriculture?”

April 12, 2011

The Honorable Elton Gallegly, Chairman
The Honorable Zoe Lofgren, Ranking Member
House Judiciary Subcommittee on Immigration Policy and Enforcement
U.S. House of Representatives
Washington, DC 20515

Re: UFW Written Statement on House Judiciary Subcommittee on Immigration Policy and Enforcement Hearing on “The H-2A Visa Program – Meeting the Growing Needs of American Agriculture?”

April 13, 2011

Dear Chairman Gallegly and Ranking Member Lofgren:

The United Farm Workers of America (UFW) thanks Chairman Gallegly, Ranking Member Lofgren, and the Subcommittee for the opportunity to offer insights and expertise regarding the H-2A program and immigration policy. We also wish to underscore the urgent need not only for H-2A reform, but also for much broader-based policy reforms needed to ensure the survival of much of the farming sector in the U.S. and keep farm worker families intact. Agricultural workers have confronted difficulties in immigration policy since the founding of this nation. Our government policies and enforcement efforts have often contributed to an imbalance in power that has subjected farmworkers to poor wages and working conditions.

The Bracero guestworker program, initiated during World War II to bring Mexican laborers to the U.S. for farm work, became known for its abusive treatment of Mexican workers, despite the existence of protections for wages and benefits, and was finally ended in 1964. Out of that tragic history, Cesar Chavez, and the United Farm Workers, built another vision. Cesar demanded and the UFW still demands that farmworkers be afforded the same rights, enjoyed by other workers, to a fair wage, safe working conditions and the right to organize. Our slogan “Si, Se Puede” or roughly, “Yes, it can be done,” is at its core a symbol of our commitment to the unbending pursuit of justice for all U.S. farmworkers -- be they immigrants or natives.

We believe that every one of our goals, and indeed the future of agriculture, are intrinsically tied to sensible immigration policy that allows the current agricultural work force the opportunity to earn legalization and provides new channels for future workers to come to the U.S. that would be responsive to the labor market and which would not tie workers to one employer. We do not believe either enforcement or a massive influx of temporary guestworkers will do anything other than further aggravate the labor problems endemic to agriculture.

Sadly, this Congress seems on the hunt for a stale and unwise solution. The H-2A guestworker program is seriously flawed, and, but for the current leadership at the Department of Labor, would be worse. This program has provided agricultural employers with workers whose restricted, nonimmigrant status ensures that they will not challenge unfair or illegal conduct. Generally, our guestworker programs have tied workers to a particular employer; if the job ends, the worker may not look for another job and must leave the United States immediately. The guestworker who wishes for a visa in the next year must hope that the employer will request one, because the employers control access to visas. Such workers are often fearful of deportation or not being hired in the following year, and are therefore reluctant to demand improvements. They work very hard for low wages. U.S. workers often recognize that they are not wanted by the employers who use the guestworker system. Currently, there are about 50,000 H-2A jobs approved annually, out of an agricultural work force of 2 to 2.2 million.

There are many abuses under the H-2A program ranging from minor to very serious trafficking in human beings. Unfortunately, our government has rarely enforced the protections in the H-2A program. In recent years, the United Farm Workers and the Farm Labor Organizing Committee have been asked by guestworkers from several nations to help them improve conditions at their jobs in Washington State, Hawaii and North Carolina. We believe that unionization is the best hope that guestworkers have for better treatment and the best hope the government has of removing the H-2A program’s reputation for abuse.

Today, we have reached a situation in agriculture that demands urgent action. There are over two million farmworkers in this country, not including their family members. More than 80% of them are foreign-born, mostly but not all are from Mexico. Virtually all of the newest entrants to the farm labor force lack authorized immigration status. The helpful reports from the National Agricultural Workers Survey by the U.S. Department of Labor state that about 53% of farmworkers are undocumented. But most observers believe the figure is 60% or 70%, and much higher in specific locations. Many employers now hire farm labor contractors in the hope that they can shield themselves from liability for hiring undocumented workers in violation of our immigration law and from liability for labor law violations.

Labor contractors compete against one another by offering to do a job for less money, and the cut-throat competition means that the workers must take lower wages. When one labor contractor is prosecuted for violating labor laws, he is easily replaced. Our current immigration system is causing employers to attempt to evade responsibility for their employees, while undocumented workers are too fearful of being deported to demand changes. In many cases, due to inadequate enforcement of labor laws, employers take advantage of undocumented workers by subjecting them to illegal wages and working conditions.

When the majority of workers in an economic sector are living in the shadows of society something must be done. The current situation is not good for farmworkers who want to be able to work legally and earn a decent living to support their families. It is not good for employers who want to hire people without worrying that they will be raided by the immigration service at the peak of the harvest of their perishable fruits and vegetables. It is not good for the government, which needs to know who is working in our economy and living among us. But it is no answer to say we will deport them and start again. The growers need these experienced workers to cultivate and harvest their crops. In fact, many growers contend that there are labor shortages in some areas because undocumented workers are too fearful of immigration raids to come to the open fields.

The United Farm Workers recognized several years ago that the status quo needed to be remedied. We also recognized that some of our long-held beliefs would need to be modified if we were to achieve any sort of reform. During the late 1990’s, we strenuously and successfully opposed efforts in the House and Senate by agricultural employers to weaken H-2A protections and procedures and transform most farmworkers into vulnerable guestworkers with no path to citizenship. Our successful opposition led to a stalemate since we did not have the legislative support needed to enact our ideas about immigration and labor reform.

Simply reforming the H-2A program is not enough. H-2A reform will not address the problem of a half million farm worker children whose parents are without legal status. Most of these children are U.S. citizens. While implementation of E-verify will cause major dislocations in the agricultural industry and serious economic losses, it will truly have terrible consequences for these children. In our zeal for more enforcement, we should not let these children become collateral damage. We need a better solution than simply lowering the labor standards under the H-2A program.

Since deporting all undocumented farmworkers currently in this nation would cause the collapse of the agricultural industry, the only equitable and practical solution is letting undocumented workers here now earn legal status by continuing to work in agriculture. That is exactly what would happen under the broadly supported bipartisan AgJOBS bill, negotiated by the United Farm Workers and leaders from the nation’s growers.

AgJOBS, which is embraced by leading Democrats and Republicans in Congress, is a compromise of both side’s vision. It offers growers a legal and stable work force, ensures domestic workers receive jobs before foreign workers are imported and protects guest workers from being exploited as they have been in the past. One-sided changes to the H2A program do not solve our nation's agricultural labor supply issues. We need Congress to pass the AgJOBS bill.

AgJOBS would provide agricultural employers and the nation with a legal, stable, productive workforce while ensuring that basic labor protections would apply to farmworkers. AgJOBS has two parts. First AgJOBS would create an “earned adjustment” program, allowing many undocumented farmworkers to obtain temporary resident status based on past work experience with the possibility of becoming permanent residents through continued agricultural work. Second, it would revise the existing H-2A agricultural guestworker program.

The earned legalization program certainly should not be called “amnesty.” It is a difficult two-step process. The applicants for earned legalization will have to show that they have worked at least 150 days in U.S. agriculture during the past two years, and then must work at least 150 days per year in each of three years or at least 100 days per year in each of five years. Farmworkers will also have to show that they have not been convicted of a felony or serious misdemeanors. Spouses and minor children of the farmworkers will be eligible for a temporary status, too. If they fulfill their obligations, they will be granted a green card for permanent resident status. They will have to pay substantial fees and fines at both steps. Through this multiyear process, the United States will have a stable, legal farm labor force that is highly productive.

This is a tough program. Farm work is dangerous, difficult, seasonal and low paid. This truly will be an earned legalization.

AgJOBS also would revise the H-2A guestworker program. We feel that we made painful concessions to achieve this compromise. The program’s application process will be streamlined to become a “labor attestation” program similar to the H-1B program, rather than the current “labor certification” program. This change reduces paperwork for employers and limits the government’s oversight of the employer’s application. AgJOBS would retain both the “prevailing wage” and “adverse effect wage rates,” but would freeze the adverse effect wage for three years. The Government Accountability Office and a special commission would make recommendations to Congress about the wage rates within 3 years. If Congress has not acted within 3 years, then the wage rates will be adjusted by the previous years’ inflation rate.

We believe that AgJOBS is a reasonable compromise under the circumstances.

To conclude, we recommend the following: (1) We encourage you to pass AgJOBS. (2) Congress and the Administration should be vigilant about abuses under guestworker programs. Strong enforcement of the labor protections for guestworkers will prevent guestworkers from being exploited, prevent the wages and working conditions of United States workers from being undermined, and will take away the incentive that employers have to hire guestworkers rather than U.S. workers, including those who would earn legal immigration status under the AgJOBS earned legalization program. (3) Congress needs to adopt protections against abuses associated with foreign labor contracting. The U.S. Government has refused to look at the abuses that occur during the recruitment of guestworkers in the foreign country. Yet, those abuses abroad, including payment of high recruitment fees, result in mistreatment of guestworkers on the job in the U.S., because the guestworkers must work to the limits of human endurance and avoid deportation a
t all costs to pay back those fees. We also ask you to recognize that the best protection workers – both U.S. and foreign -- have for an employer that participates in a guestworker program is a labor union.

Government policy should promote collective bargaining to reduce abuses under guestworker programs and give workers a meaningful voice at work. A review of the heat illness fatalities in California, the state with the largest number of farmworkers in the nation, demonstrates the role collective bargaining can play in keeping workers safe. While there have been 15 heat illness fatalities among farmworkers in recent years, none have taken place at an operation where farmworkers have collective bargaining. In fact, in the nearly 50 year history of the UFW, there has never been a heat illness fatality at a UFW worksite.

The UFW looks forward to working with Congress to address the long-overdue challenge of establishing a workable and sustainable agricultural labor program. Thank you.


Arturo S. Rodriguez
United Farm Workers of America