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Immigration Reform

Floor Speech

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Location: Washington, DC

Mr. CHAMBLISS. Mr. President, I rise to speak briefly on the bill before the Senate and more extensively on a section of this bill I have been working on diligently to improve.

First of all, I wish to commend the authors of this bill. I have been through complex legislation before and this is a very complex issue. I know how hard the so-called Gang of 8 has worked. We can't please everybody with any complex piece of legislation, but I think they have done a very credible job of putting together a piece of legislation that at least we could get to the floor for debate.

I think having this bill on the floor is causing us to have a very important debate that is long overdue. We all know our immigration system is broken and we need to fix it. However, I am disappointed we have not been able to have a full and open debate on potential solutions to fix the system. I have stated publicly that I have serious concerns with several provisions in the bill, including some related to border security triggers, interior enforcement, and the program designed to address our agricultural labor workforce. That last topic--agricultural labor--is what I wish to spend the majority of my time discussing tonight.

But before I focus on the ag piece of this bill, I just have to say that I am terribly disappointed and frustrated at the way this bill has played out. I am about to talk for several minutes or so on straightforward, commonsense amendments to the agriculture portion of the bill.

I have been working on ag immigration reform for nearly all of my time in Congress, both in the House and in the Senate. That is a total of going on 19 years. This is an issue I care deeply about because I come from the heart of ag country in south Georgia. But guess what. I am not going to have a chance to vote on any of my amendments, not because they are poison pill amendments--they are not--not because many of my colleagues do not agree with the changes I am suggesting--many actually do. It is because the sanctity of a deal has been given precedence over sound policy. Let me say that again: The sanctity of a deal is being given higher priority over sound policy.

Now, I am not on the Judiciary Committee, and the chairman of the Judiciary Committee was down here a little earlier talking about everybody had the opportunity in committee to file amendments. They had over 300 or so. That is well and good, and I am glad this bill went through regular order. I wish every bill that came to the floor of this Senate would go through that same regular order. But I am also not a Member of the Gang of 8, so I have not had the opportunity to have input on this bill. Nevertheless, I reached out in a constructive way to various folks to try to make some changes to the bill.

I particularly want to thank my colleagues, Senator Graham, Senator Rubio, Senator Bennet, and Senator Schumer and their staffs for working tirelessly and in good faith with me to try to make some improvements to the bill.

I thought we were making progress, and I think actually we did. But now I understand that one or two Members want to prevent this bill from happening, and so I am not going to be given the opportunity to have my amendments called up.

What I can do, and what I will do, is highlight to my colleagues here and to my friends in the House of Representatives who may or may not take up this issue the problems I see with the ag portion of this bill.

The agricultural portion of this bill has not been discussed extensively on the Senate floor, but it is vitally important to all Americans. Farmers and ranchers in the United States produce the highest quality food and fiber in the world. The continued safety of the agricultural goods produced in the United States is an issue not just of convenience but of national security. Due to the importance of food safety, it is critical to know who is handling our Nation's food supply and who is working on our Nation's farms and ranches. Additionally, if our farmers and ranchers cannot access a stable and legal workforce, they will be forced to downsize or eliminate their U.S. operations, and that is happening today. This leads to more of the food we eat being imported from other countries. I want to make sure we do everything we can from a policy standpoint to keep that food and fiber production right here in the United States.

Today the majority of immigrant agricultural workers are undocumented. We need both secure borders and put in place an immigration system that allows those who seek to come to the United States to work in the diverse sectors of the agricultural industry to do so legally. H-2A is the current ag guest worker program in force in the United States today.

I have been working on H-2A reform since I came to Congress not only because Georgia's farmers are among the largest users of the program, but because it is clear to me that the current program is cumbersome and difficult to use, as well as expensive.

My colleagues who drafted this bill have included many reforms to the agricultural guest worker program, and several of these reforms do take a needed step in the right direction. However, there are several areas that remain troublesome to me, and so I am proposing amendments to address some specific areas.

Mr. President, I know the section of this bill focused on agriculture represents a delicate political balance, but we have a responsibility to enact smart policy, and we also have a rare opportunity to replace the cumbersome and largely unworkable H-2A program with something that will truly address the needs of those in agriculture all across the country while ensuring that no American workers are displaced. We also need to ensure that we do not give those undocumented aliens working in one sector of our economy a vast preference over the rest of the illegal population in terms of the pathway to citizenship.

Before I talk about my amendments, I want to give Members of the Senate an understanding of how the agriculture piece of this bill is set up. The ag portion of this bill puts in place a blue card program to transition illegal aliens who have worked in agriculture to lawful permanent resident status.

It also creates a new agriculture guest worker program to replace the current H-2A Program. The blue card program is open to anyone who has worked in agriculture for 575 hours or 100 workdays over the 2-year period of 2010 to 2012.

Let me say that again. If you worked for 575 hours or 100 workdays out of the 730-day period of 2010 to 2012, you qualify for a blue card provided you had that work in agriculture. Frankly, to me, that is a very low threshold.

The general undocumented population covered by our RPI program which is in the base bill has to prove they meet the requirements to gain RPI status by a preponderance of the evidence standard of proof. However, for the blue card program, that undocumented alien only has to prove
they worked that very minimal amount in agriculture by the standard of proof called just and reasonable inference. There is no interview required, and no way to verify the person applying for the blue card status actually worked in agriculture. Someone who lives in an area where agricultural work is performed and has evidence of their residence in that area could get a blue card by showing proof of residence and saying they were paid in cash in their agricultural job.

I am afraid the lax standards set out by the bill to qualify for the blue card program will lead to an influx of illegal aliens who worked a minimal amount in agriculture or never even worked in agriculture, to qualify for the program, sending more folks than we need in the agriculture sector to those jobs.

You might say, Why in the world would anyone choose to qualify for the blue card program, since agricultural work is widely viewed as some of the toughest work around and the most demanding work? Well, the answer is pretty simple. It is because the blue card program is a faster, cheaper, easier way to a green card than the RPI program for other undocumented aliens in the base bill.

While the RPI program doesn't allow illegal aliens to get a green card for at least 10 years, under the blue card program, if you are an agricultural worker, you can get a green card in 5 years.

While the RPI program doesn't allow green cards to be issued until certain border triggers are met, the blue card program doesn't require those aliens to wait on that border security piece.

Thirdly, while the RPI program costs a $2,000 fine in addition to processing fees, the blue card program has a cost of $500. The theory behind the blue card program is to incentivize this undocumented population to work in agriculture because it is a critical industry that traditionally has not attracted many American workers. However, the way the bill is written, there are very minimal agricultural work requirements.

You have to keep in mind that once an alien gets a blue card, they are authorized to work in any job in the United States. They have to meet the minimum work requirements in an agricultural occupation, but otherwise they are free to take any other job in America and are treated as a U.S. worker for hiring purposes.

So what are these work requirements to go through the blue card program and to get a green card? Well, there are two tracks: The illegal alien can work at least 100 days a year in an agricultural operation for 5 years or the alien can work 150 days per year for 3 years. Either way, the alien gets that green card in 5 years. Even the accelerated track requires the alien to work less than half the year in agriculture.

While the alien can work in any other job in the United States, he or she doesn't have to. So, in theory, a blue card holder could work 100 days per year for 5 years in agriculture and be totally unemployed the remainder of the year, and still get a green card in 5 years and still have legal residence inside the United States.

Likewise, the alien could work 150 days per year for 3 years and be totally unemployed the remainder of the time and still get a green card in 5 years. That doesn't seem right--especially when the RPI population is not allowed to be without a job for more than 60 consecutive days. Clearly, the agricultural worker is getting a vast preference over the RPI undocumented workers.

Because of the way the blue card program is set up, I am afraid we are providing too strong an incentive for people who did very minimal or even no work in agriculture to access the program, and that we will end up with more agriculture workers than we need. Then because the work requirements are so low, once folks get the blue card, they will perform the minimal amount of work required and move on to a different job and we will leave those farmers and ranchers in the lurch with an unstable workforce--because, remember, these blue card folks are treated as U.S. citizens for hiring purposes.

The other aspect of this that concerns me--and we know this to be a fact because we saw it happen after the 1986 amnesty program under Ronald Reagan. That is, once these individuals who are working in agriculture get that green card, which allows them to permanently stay in the United States, they are out of agriculture. They are going to leave the farm, and they are going to go to work in construction or some other industry someplace in America where the working conditions are better and maybe even the pay is better. It is going to happen, because history tells us it is going to happen.

Some of my amendments are aimed at tightening the blue card program to ensure that only those folks who truly work in agriculture are using the program. The fact is I want those experienced agricultural workers to stay in agriculture, and I am also providing them some incentives to do so. The base bill here went way too far in the other direction.

The first amendment I will discuss tightens requirements to obtain the blue card. It raises a standard of proof to verify that you actually worked those very minimal qualifying hours in agriculture to

qualify for the blue card program to what it is for the RPI population, i.e., a preponderance of the evidence.

As I mentioned before, the standard in the base bill is just and reasonable inference. Someone has to be able to prove by a just and reasonable inference that they performed over 2 months of agricultural work over a 2-year period of time in order to get into the blue card program. I think that standard leaves the program susceptible to all kinds of fraud.

However, I understand there are concerns by some that due to the nature of undocumented work in agriculture, it will be difficult for them to garner the necessary evidence of work history to access the program even though the bill protects employers from liability for having employed illegal workers.

At any rate, because there is that concern, my amendment provides that for those who truly worked in agriculture but cannot meet that standard, because of the nature of an undocumented workforce, they don't have that evidence, those folks have the opportunity to sit down and do an interview with the appropriate agency officials and prove to them face to face that they did work in agriculture as a matter of just and reasonable inference. If they can do that through the interview process, then they can get into the blue card program.

This amendment will eliminate most of the potential for fraud for the blue card program and is simply a very commonsense amendment.

The second amendment I will mention tightens the work requirements to maintain the blue card and eventually transition to a green card. Instead of allowing 100 workdays for 5 years or 150 workdays for 3 years to get a green card, my amendment says you must work 180 days for each of the 5 years in order to qualify for the green card.

If you are going to be put on this preferential pathway to a green card, I think you ought to be able to work at least half the year in agriculture. I don't think that is too onerous--6 months of work per year for 5 years.

Some will argue that some agricultural work is only a few weeks per year, and so 6 months of work per year is too much to require. To that I would say if a worker is only performing 3 or 4 weeks of agricultural work per year, then maybe this blue card path is not the best path for them. Perhaps they are better off seeking the RPI pathway to citizenship. We are talking about a preferential pathway to citizenship for a half a year of agricultural work per year under my amendment, with no other work requirement. I don't think this is too much to ask, and I think many people will still be able to maintain their blue card status with no problem.

The third amendment I filed has to do with how preferential that pathway to citizenship is for the blue card workers. The current bill says regardless of any border security triggers being met, an unlimited number of blue card workers will be issued green cards in 5 years. Those folks who qualify under the RPI section of the bill can't start the green card process until 10 years after enactment and certain border triggers are met. I think stretching that timeline for the blue card workers--who, remember, are authorized to work in any job in the United States--to 7 years rather than 5 years is more than reasonable and is still a preferential pathway to citizenship.

The fourth amendment dealing with the blue card program deals with the fines for the blue card program. Again, this goes to how much more attractive the blue card program is as compared to the RPI program.

The bill, as written, requires folks on the RPI program to pay fines totaling $2,000 in order to get a pathway to citizenship. However, those on the blue card program are only required to pay fines totaling $500--just $500 for this faster and easier pathway to citizenship. That is not right.

I understand these agricultural workers don't have a lot of money, and so I am not asking to raise it to the same level as the RPI group. However, I think the fine should be significant. My amendment would increase that total blue card fine to $1,000, which is double what it is in the underlying bill but still half of what it costs the RPI folks.

The final amendment I have filed relative to the blue card program should be totally noncontroversial. It has to do with previous H-2A workers who want to participate in the blue card program.

There is a provision in the underlying bill which I agree with that allows those former H-2A workers who meet the blue card work requirements to apply for a blue card and participate in the blue card program even if they are not currently in the country. I think this is the right policy, because many H-2A employers have been using the same workers for many years through this legal guest worker program, and I don't think we should punish them for having done the right thing in the past.

What this amendment does is simply add language that clarifies that the agencies involved in administering the blue card program need to promulgate regulations that will allow those former H-2A workers to make their application from outside the country.

In summary, I have five amendments to this bill relative to the blue card program and several of these are smell-test amendments, because without them I think it is difficult for this blue card program to pass the smell test.

I also have a series of amendments aimed at improving the new agricultural guest worker program set up by this bill, which is called the W-2/W-3 program.

It is imperative that we as policymakers get this program right. If history is any indication, we make reforms to our immigration laws once every 20 to 30 years. We have to make sure the guest worker program put in place by this bill is practical in its implementation and can be used by our farmers and ranchers, because as these blue card workers leave agriculture--and we know they will--we have to make sure there is a stable and legal workforce available in those instances when U.S. workers cannot be found.

I have said it before and I will say it again, that I think this new guest worker program takes a step in the right direction. But I do have a few amendments to improve it that I will talk about now briefly.

The first amendment has to do with wages. The underlying bill sets a national minimum wage for each of six different agricultural job categories for the years 2014 to 2016. The wages for each category will automatically increase anywhere from 1.5 percent to 2.5 percent each year forever.

I have several issues with this wage section, such as the fact that a national wage does not reflect very real regional differences in cost of living or the fact that the wages do not seem to be based on any survey data. But I know how hot an issue this wage section is, so in an effort to be abundantly reasonable in how I propose to alter the bill, the main fix I am looking to make is to the number of wage categories.

I think we can all agree some agricultural jobs require a more skilled or experienced worker than others, and my amendment protects that fact. What I am trying to avoid is the bookkeeping nightmare created by these six wage categories.

Under the categories presented in the base bill, a worker in a packing shed is in a different category than a field worker and is paid at a different rate; and a worker driving a tractor is in a different category and paid at a different rate from the field worker and the packing shed worker. But all of my friends familiar with the day-to-day operation of a farm will agree, the reality is that on any given day on a diversified crop farm, workers will be doing any combination of those three jobs. So my amendment collapses those six wage categories into two: a skilled wage and an unskilled wage. To get to those numbers, I simply averaged the wage data the Gang of 8 proposed in the underlying bill and used the same job categories the Gang proposed in the bill.

My aim is to prevent an employer from having to determine how many hours a guest worker spent in the field versus the packing shed each day, as he would have to do under the current bill.

The second amendment deals with the issue of liability. If you ask my H-2A users in Georgia what their biggest complaint is with the H-2A program, I will guarantee that all of them will tell you it is liability.

Let me be clear upfront. I do not want to take away any protections that exist for workers. They need that. They deserve it. Nor do I want to prevent a worker with a legitimate grievance to be allowed to pursue that grievance. What I do want to protect against, though, is frivolous lawsuits that can cost a lot of money and waste a lot of time. There are several areas in the bill that I think can be tightened as they relate to liability.

The first area of liability that I think needs to be dealt with and is addressed in my amendment has to do with mediation. The bill rightly sets up alternative dispute resolution to try to keep some of the complaints outside the Federal courtroom. However, the mediation setup under the bill is not binding. What is the point of providing this alternative dispute resolution if you do not want to make it binding? My amendment would do just that.

The second area of liability that is addressed by my amendment has to do with the Legal Services Corporation. Current law provides that Legal Services cannot represent an undocumented alien who is not present inside the United States at the time representation occurs. I think that is a good law. The underlying bill, however, eliminates that law and specifically says that Legal Services can represent a W-2 or W-3 ag guest worker, even if they reside outside the United States.

We are not talking about U.S. citizens. We are not even talking about blue card workers. We are talking about future guest workers. I think it leaves open the possibility of frivolous lawsuits being filed from a foreign country, and I simply do not think that is sound policy.

There is a final area of liability I am concerned about that has to do with housing. The bill treats those agricultural employers who provide housing under the W-2/W-3 program, as they are required to do if they cannot or do not provide a housing allowance, as housing providers under the Migrant and Seasonal Agricultural Worker Protection Act, MSPA, as it is referred to.

Let me tell you what that means. It means that any guest worker who alleges a housing violation such as a broken screen door or a nonworking microwave will be allowed to pursue that grievance through a lawsuit filed in Federal court, and believe you me it happens today.

That doesn't make sense to me. There should be a right to cure a defect before they have that right to file suit in Federal court. There should be a right for the employer to fix any minor or incidental issues with housing, but that is not allowed under the base bill. Initially, my amendment had language to address this, but at the request of the bill's sponsors who told me that was too controversial, I eliminated that piece of my liability amendment. It is strange to me this would be controversial, but to some it is, so that is a problem in the bill I am not even addressing by this amendment, but I do want to highlight it for my colleagues because I am telling you, this is going to be a real issue if that provision in this bill ever becomes law. I am hopeful that as this process moves forward there may be another opportunity to do something to address this in a reasonable way.

The third amendment to the guest worker program has to do with the allocation of visas. The current bill allocates the 112,000 W-2 and W-3 visas among the four quarters of the year. I understand the intent of the drafters.

They didn't want all of the visas to get used by all of those who seek visas early in the calendar year and not have any visas available for those who do not need workers until later in the year. However, I think a more efficient distribution of visas would be to issue them to all allotments; one on January 1 to accommodate year-round users such as dairy and those with a spring crop and then one on July 1 to accommodate the fall crop. My amendment does just that and it weights the January 1 allotment to have 70 percent of the visas because there are those year-round users such as poultry processors who will be needing those visas early on.

Any unused visas from the January 1 allotment will roll over to the July 1 allotment. The fact is crop seasons do not fit squarely into calendar quarters, and I think by changing the timing of the visa allotments it simply makes more sense.

The fourth amendment to the guest worker program I have filed has to do with the wages of former H-2A workers. I can commend the drafters for recognizing that we do not need to punish those employers who, to their economic disadvantage, have been using the current H-2A program to ensure they have a legal workforce. They did this by saying that even though blue card workers are treated as U.S. workers under the bill, and therefore have to be hired before any guest worker, if you have used a H-2A worker for 3 out of the past 4 years and want that H-2A worker to continue to work for you under the new guest worker program, you can. That former H-2A worker will not be displaced by a blue card worker.

However--and this is where I have the problem--if you hire that former H-2A worker under the new guest worker program, you do not pay that worker the wage rate established under the W-2/W-3 program. The bill requires that you pay that former H-2A worker a separate and higher wage rate called the AEWR. This is the wage rate that exists under the current H-2A program and it is part of the reason that law is so flawed. This just doesn't make sense. It seems to, once again, punish those who have been playing by the rules and the punishment is exacerbated because there is a provision in the bill that says you cannot give any preference to guest workers.

On its face that makes sense. But what it actually means is that you have to pay all the workers you hire that AEWR rate and that is just not right. This is a fairly technical concept, so let me give an example.

Say you have farmer Joe who has been using the H-2A programs even though his neighbors have not and they have hired undocumented illegal aliens and paid a much lower rate. This means all these years Farmer Joe has been

providing free housing to his workers, paying their transportation costs to his farm, and paying the higher AEWR wage rate, which in Georgia this year is $9.78; meanwhile, those who use a questionably legal workforce have not had to provide housing, have not had to provide transportation, and have only paid minimum wage to their workers. If Farmer Joe uses 100 H-2A workers every year and has 10 critical workers he wants to make sure he rehired under the new W-2/W-3 program, he can do that. He can hire these 10 guys before he hires any blue card workers. He still has to hire Americans first, but after that he can hire those 10 workers.

The rest of his workforce, in all likelihood, will be filled with blue card workers because there will be so many of them legalized and needing to meet a work requirement. So Farmer Joe will have 10 former H-2A workers and 90 blue card workers. However, under this bill, he will be forced to pay those former H-2A workers the higher wage rate of the AEWR, rather than the wage rate set up by the W-2/W-3 program in the underlying bill. Because he can't treat guest workers any better than U.S. workers and because blue card workers are considered U.S. workers, he will also have to pay all 90 of the blue card workers the AEWR rate.

So my amendment would simply strike that provision so Farmer Joe will pay the wage rate set up by the W-2/W-3 program. He will still have to pay all the blue card workers at the W program wage rate but not the AEWR rate.

The final amendment I will discuss is very straightforward. It simply extends the H-2A program for 3 years. The current bill extends H-2A for 1 year, but my amendment would add 3 years to that. While the H-2A program is far from perfect, it does allow employers who need legal workers to get them in a timely manner. Standing up a new program and moving it to a new agency and issuing new regulations to govern the program is a big undertaking, and it is all mandated to be done within this 1 year--within 1 year in the bill. I think H-2A can serve as a safety net in the off chance there is a bump in the road in getting these new programs propped up.

As I said earlier, I will not have the opportunity to have any of these amendments voted on or even accepted by unanimous consent. I cannot tell you how much that disappoints me. Any of these changes will take this bill in the right direction, from my perspective. The ag portion of this bill is a critical piece of the legislation, and I am afraid it has been overshadowed by some of the other issues. But we are doing a great disservice to our agriculture community and to all Americans who put food on their tables every night if we do not get this right--and we are not getting it right in this underlying bill.

There is going to be fraud and abuse like we have never seen in the ag guest worker program. We are going to have folks getting green cards ahead of those who have been standing in line and doing the right thing for years and years and years and all of a sudden these workers who now hold a blue card and say: Yes, I worked in agriculture for 3 months out of the year for Farmer Mack over here--and there is nobody to dispute that--and he says: I worked a definitive period of time for 3 years, all of a sudden at the end of a total of 5 years he is going to get a green card and an automatic pathway to citizenship. That is just not right.

I came to my colleagues in good faith to try to make positive changes to this bill. I come to the floor now to talk about some of those changes. Ultimately, I want what is best for American agriculture. I want to be a constructive part of this debate and, unfortunately, a relatively few of my colleagues are preventing that from happening and none of these amendments are ever going to see the light of day.

I yield the floor. I suggest the absence of a quorum.

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