Remarks by Homeland Security Secretary Michael Chertoff, Department of Labor Secretary Elaine L. Chao, and Department of Agriculture Deputy Secretary Chuck Conner at a Press Conference on Immigration
Statement
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SEC. CHAO: Good morning. Thank you all so much for being here today. We are here to announce a series of reforms to preserve the vibrancy of America's agricultural sector, America's farmers, by ensuring that American farmers have an orderly and timely flow of workers to harvest their crops.
I'm going to outline the Department of Labor's proposal - I'm Secretary Chao. And I will be followed by Secretary Chertoff and then Deputy Secretary Conner. Deputy Secretary Conner may have to leave in a little while, but in time to give his statement.
And so let me just tell you a little bit about what's happening at the Department of Labor. There are about 1.2 million hired agricultural workers in our country today, and estimates show that between 600,000 and 800,000 are undocumented workers. There simply are not enough U.S. workers to fill the hundreds of thousands of agricultural jobs that are available in this country.
Farmers can hire temporary workers, foreign workers, to harvest their crops through the H-2A Visa Program, which was established by Congress in 1986, and administered by the Department of Labor. And yet despite the fact that this program is uncapped, agricultural employers hired only about 75,000 H-2A workers in 2007.
Now, following the stalemate on the comprehensive immigration reform, the President asked for a review of this program because of the critical need for agricultural workers. And the Department found that the current H-2A regulations haven't been updated in about 20 years.
Farmers report that the H-2A program is burdensome, it's inefficient, it's bureaucratic, and it's just riddled with delays. And many farmers who have tried to use this program have had such bad experiences that they stopped using it altogether.
This issue needs to be addressed now, or our country will see eroding competitiveness in our agricultural sector, crops being left to rot in the fields, and increasing shifting of domestic food productions to overseas.
So today the Department of Labor is announcing proposed - and let me emphasize, it's proposed - changes to the H-2A program that will provide farmers with an orderly and timely flow of legal workers, while protecting the rights of all agricultural workers.
And the changes have four main goals. First, is to provide the steady and timely flow of legal workers that American agriculture needs to fill the hundreds of thousands of jobs of which there are no available American workers.
Second, to better protect the wages and the working conditions of U.S. workers by encouraging farmers to hire legal workers through the H-2A program, who have guaranteed - which have guaranteed wages and guaranteed legal rights.
Third - and this is very important - these proposed changes would bring the Labor Department into compliance with its legal obligations to process H-2A applications within the statutory time line set by Congress. Right now, the Department is required to file and to process H-2A applications within 15 days. But under the current regulations, this is almost never met.
And fourth, these proposed changes are to strengthen enforcement of workers' rights by expanding advertising and recruitment of requirements for U.S. workers, and increasing the penalties for employers who violate program requirements.
Let me give you a snapshot as to how the H-2A program works. Employers who cannot find U.S. workers can bring in foreign workers on a temporary basis by applying for a H-2A visa. Before the U.S. Citizenship and Immigration Service in Secretary Chertoff's department can approve an employer's petition to admit foreign workers, employers have to receive what's called a "labor certification" from the Department of Labor. And the Department of Labor certifies that: one, there aren't enough American workers who are willing, able, qualified, and available to do the work; and two, that the foreign workers will not adversely affect the working conditions and the wages of American workers.
So during a review of the current regulations, the Department identified a number of practices not required by statute that have contributed to making this program very difficult to use. For example, the current program requires employers to navigate a maze, literally a maze, of four different states and federal agencies. Jumping through all these hoops is expensive, time-consuming, and most of all, ineffective. And at times, the process is so paralyzed by delays that farmers do not receive the workers that they need in time to harvest their crops. And last year in Colorado, for example, the state was forced to use prison labor to ensure that crops would be harvested in time.
So the new reforms announced today address many of the complaints about this program. We hope that it will improve the application process, and increase protections for both American and foreign workers. And we seek the public's input.
Specifically, the new regulations will, one, eliminate duplicative processes by requiring employers to file H-2A visas applications directly with the Department of Labor, rather than going through the state workforce agencies. And secondly, we're proposing to increase advertising and recruitment requirements to provide U.S. workers with additional information about job opportunities and more lead time to apply for these jobs before temporary foreign workers can be hired.
Third, we propose to improve the processing times for applications by requiring employers to attest, under threat of substantial penalty, that they have complied with all the requirements. And fourth, we propose to revise the methodology for calculating the wages required to be paid under the H-2A program, to better reflect agricultural wages by locality, occupation and skill level.
And fifth, we propose to enhance the Department's ability to conduct audits of H-2A certifications, and authorize a revocation of approved certifications and debarment of employers who fail to comply. These proposed reforms will also substantially increase civil money penalties for program violations. And finally, these proposed regulations will revise H-2A application fees so that they better reflect the actual fees of administering this program.
Now, separately the Department is also proposing an important statutory fix that would allow the fees to be used by the Department to improve program administration and enforcement, rather than sending the fees to the General Treasury.
I don't have to tell you H-2A is a complicated program with a long history. The Department recognizes that proposing changes to policies and practices that have been around for a long time may be controversial. But unless changes are made to more accurately reflect today's economy, the labor challenges confronting U.S. agriculture would just continue to get worse.
So at this point let me turn the podium over to Secretary Chertoff, and let him tell you about some of the proposed reforms at the Department of Homeland Security. Thank you.
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SEC. CHAO: The application, by law, are supposed to be processed within 15 days - and they are not. So as law-abiding citizens we are very concerned about that. We hope that through these new changes, that that indeed will occur. So it's within about 15 days. That does not mean - of course, we're lengthening the recruitment and advertising period to about 90 days beforehand. But from a time that a farmer applies for the program, they should get an answer within 15 days.
Q From here, these proposed rules, what is the process from here on out to actually get them to go into effect? When would you expect them to go into effect, and given that there's less than a year in the Bush administration, are they going to take effect?
SEC. CHAO: First of all, the question about process is an excellent one because I want people to understand we have issued what is called - we are issuing today what is called a "notice of proposed rule-making." And this is part of the regulatory process that the federal government goes through to put in place changes.
There is a time and a period in which the public and interested groups will be able to comment, and so there will be a 60-day* comment period that will start from the time that the notice of proposed rule- making is made public. And people can respond, they can object, they can agree.
I think what's most important is that we hear from people who are concerned about this problem. We seek their input. We also seek their advice to make these regulations, again, more effective and more timely and also more protective of all workers who work in the United States.
Q And after that?
SEC. CHAO: After that, we take those comments and we will evaluate them, then we have to give it to the Office of Management and Budget, and they'll take some time to review the regulations, the proposed changes to the draft that we have now, and they'll probably come out, we expect, maybe July-August of this year.
Q Are you all looking at reforming the other temporary work visa programs?
SEC. CHAO: Well, the President, last August, in the aftermath of the stalemate that surrounded the immigration reform package - the President did ask all the departments who had relevant portions of programs in the immigration debate to review these programs to see whether something can be done to address some of the delays, the inefficiencies, the ineffectiveness of some of these programs. We have two, and so we're looking at both. Secretary Chertoff has other responsibility -
Q (Inaudible) regulations on those?
SEC. CHERTOFF: On some of the other - I mean, some of the other programs present problems -
SEC. CHAO: Secretary Chertoff has his programs, so he's going to talk about his.
SEC. CHERTOFF: - are statutory problems. We have to get - you know, for example, there's a cap on H-2B, there's some other statutory limitations. We are looking at in our domain some additional possible regulatory changes. But to get truly profound reform on some of these programs - which I think there is considerable pressure to do - it's going to take Congress to step up to the plate.
SEC. CHAO: It would be interesting to note here, H-2A visa program is the only one that is uncapped, and yet it's under-utilized.
Q With the participation so low today, realistically, if your rules go through, how much do you expect to impact this large number of illegal immigrants that currently don't participate in the program?
SEC. CHAO: Well, we hope there will be a significant impact. As border enforcement continues and border security, homeland security, is a very important part of the government's responsibility, which lies in Secretary Chertoff's department, we do expect that - I think Americans expect us, American citizens expect us to do our job in enforcing border security. That will have an impact on workers coming into the United States.
And so we hope that by publicizing this program and making it easier to access, that more people will use this uncapped H-2A Visa Program. I think most people want to obey the law. Most people -
Q (Inaudible).
SEC. CHAO: Sorry?
Q With the amount of time that's left in the administration, will you know that?
SEC. CHAO: The regulations will probably come out around July- August, as I mentioned, and they will probably be ready for the next season. Again, this is a program that benefits everyone, as Secretary Chertoff has said. You know, workers who are coming into our country illegally are not protected; their wages are not guaranteed. And so we need to ensure that all workers within the United States are paid appropriately and that they are protected in terms of workplace safety and health. That is a right that every worker in America should have.
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Q I wanted to kind of follow up on this question, that - it seems like - what I was told by - I was told that about 2 percent of the ag employers use this program. So how much, realistically, could it grow with the constraints on consul offices for visas? And as a follow-up to your statement on protecting workers, there was mention of town halls for employers, but I didn't hear any mention of town halls for people who are advocates for -
SEC. CHAO: Oh, there have been.
Q How many have there been?
SEC. CHAO: I don't have the exact number, but there have been extensive meetings with all interested groups, advocate groups, advocacy groups, on both sides. And again, we are going through a notice of proposed rulemaking, in which we're soliciting public comment for the next 60 days*. And so that's what this regulatory process is all about: a proposal is set forward, and then we ask for public comment, and then we evaluate the comments.
What was the second - the first question?
Q How much can this realistically grow with the limits on -
SEC. CHAO: I think one of the greatest deterrents to farmers using this program to bring in workers legally is because it's so fraught with bureaucratic hurdles and delays and inefficiencies. Right now, for example, a farmer, agriculture employer, a farmer, has to apply in a duplicative basis at the state and the federal level. There's no reason for that. So we are now requiring that applications be processed and submitted to the Department of Labor. And that's going to expedite things a lot.
We are also going to require that inspections be held within a certain amount of time. So there's a lot of other changes that will, again, expedite but also provide greater protection for workers during the process. We are also, for example, increasing the penalties. There's an attestation period - process. We're also increasing penalties, we're increasing the number of audits that will be conducted.
So this is a very comprehensive program that really seeks to make more efficient this legal program to bring in legal workers, and how do we make this program more accessible to those who want to use it.
Q But how many visas really can be made available in a year's time before -
SEC. CHAO: Well, it's unlimited.
Q I realize it's unlimited, but with the limits in the consular offices, which Secretary Chertoff's department oversees, really, is there - are there resources there in the consul offices -
SEC. CHAO: Well, we have - the fee application will help. One of our proposals is to increase the application fee, and use those increased application fees to provide for the additional resources that will be needed.
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