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Statements on Intoduced Bills and Joint Resolutions - S. 1645

Location: Washington, DC



S. 1645. A bill to provide for the adjustment of status of certain foreign agricultural workers, to amend the Immigration and Nationality Act to reform the H-2A worker program under that Act, to provide a stable, legal agricultural workforce, to extend basic legal protections and better working conditions to more workers, and for other purposes; to the Committee on the Judiciary.

Mr. CRAIG. Mr. President, I am pleased to announce today the introduction of bipartisan farmworker reform legislation with a bipartisan group of Members in both the Senate and the House of Representatives. Our leading sponsors include Senator TED KENNEDY, Congressman HOWARD BERMAN, and Congressman CHRIS CANNON.

The name of the bill says it all—"AgJOBS." That stands for the "Agricultural Job Opportunity, Benefits, and Security Act of 2003." We are introducing this bill today because Members of Congress realize our Nation is facing a growing crisis—for farm workers, growers, and the wider public. We want and need a stable, predictable, legal work force in American agriculture.

Willing American workers deserve a system that puts them first in line for available jobs with fair market wages. We want all workers to receive decent treatment and protection of fundamental legal rights. Consumers deserve a safe, stable, domestic food supply. American citizens and taxpayers deserve secure borders and a government that works.

Yet Americans are being threatened on all these counts, because agriculture, more than any other sector of the economy, has become dependent for its existence on the labor of immigrants who are here without legal documentation. The only program currently in place to respond to a lack of legal domestic workers, the H-2A Guest Workers Program, is profoundly broken.
Outside of H-2A, farm employers have no effective, reliable assurance that their employees are legal. Our own government has estimated that half of the total 1.6 million agricultural work force are not legally authorized to work in this country, based, astoundingly, on self-disclosure in worker surveys. Responsible private estimates run to 85 percent.

Several more times in recent months, we have read of the senseless and inhuman deaths of farmworkers being smuggled illegally into the United States. Those who survive to work in the fields are among the most vulnerable persons in this country, unable to assert the most basic legal rights and protections. This situation never was acceptable. It has become intolerable. Immigrants not legally authorized to work in this country know they must work in hiding. They have been known to pay "coyotes"—labor smugglers—thousands of dollars to be smuggled into this country. They cannot even claim basic legal rights and protections. They are vulnerable to predation and exploitation. They sometimes have been stuffed inhumanly into dangerously enclosed truck trailers and car trunks, in order to be transported, hidden from the view of the law. We heard with horror of the young girl who died this summer when a labor smuggler abandoned her entire family in the desert in the Southwest.

In contrast, legal workers have legal protections. They can assert wage, safety, and other legal protections. They can bargain openly and join unions. H-2A workers, in fact, are guaranteed housing and transportation. Time is running out for American agriculture, farmworkers, and consumers. What was a problem years ago is a crisis today and will be a catastrophe if we do not act immediately. A growing number of family farms simply are going out of business as growers try to, but cannot, secure a legal work force. All Americans face the danger of losing more and more of our safe, domestic food supply to imports.

Many farmers have seen recently hired workers scattered unpredictably by a government letter or random raid. As enforcement of our immigration and employment documentation laws has been stepped up—sporadically and haphazardly—workers are rarely deported, but the workplace is frequently and widely disrupted. Between computerized checking by the Social Security Administration and audits and raids by the Immigration and Naturalization Service, more and more employers have discovered they have undocumented employees. More and more workers here illegally are being discovered and evicted from their jobs. The larger the so-called "underground economy," the harder it is to knowledgeably and effectively provide for our homeland security needs.

The H-2A status quo is complicated and legalistic. The Department of Labor's compliance manual alone is more than 300 pages long. A General Accounting Office study found that DOL missed deadlines in processing H-2A applications 40 percent of the time. For workers and growers alike, the H-2A status quo is slow, bureaucratic, and inflexible. It does nothing to recognize the uncertainties farmers face, from changes in the weather to global market demands. The current H-2A process is so hard to use, it will place only about 40,000 legal guest workers this year—2 to 3 percent of the total agricultural work force.

The answer is AgJOBS. This farmworker reform legislation builds upon some six years of discussion and ideas from among growers, farmworker advocates, Latino and immigration issue groups, Members of both parties in both Houses of Congress, and others. The coming together of all these diverse viewpoints and interests makes AgJOBS truly an historic piece of legislation. Our AgJOBS bill offers a thoughtful, two-step solution. On a one-time basis, experienced, trusted workers with a significant work history in American agriculture would be allowed to stay here legally and earn adjustment to legal status. For workers and growers using the H-2A legal guest worker program, that program would be overhauled and made more streamlined, practical, and secure. AgJOBS takes a win-win-win approach for our nation, workers, and farmers.

AgJOBS may be no one's idea of perfect labor and immigration legislation in an ideal world. However, for the imperfect world we live in, it is a balanced, practical, and achievable approach to resolving urgent problems that require immediate attention. The broad bipartism support for this approach is reflected already in the cosponsorship of a number of our colleagues. Among others, I am happy we are joined by Senators GORDON SMITH and BOB GRAHAM as original cosponsors, both of whom have invested years of work in this issue. Supporters of this legislation include the United Farm
Workers of America, the National Council of La Raza, and the AFL-CIO, all of whom participated in a press conference the principal sponsors held earlier today, as well as the U.S. Chamber of Commerce. This bill has overwhelming support in the agriculture community, including the National Council of Agricultural Employers, the American Nursery and Landscape Association, and the American Farm Bureau Federation.

I ask unanimous consent to print in the RECORD a list from the Agriculture Coalition for Immigration Reform that includes a large number of agricultural groups around the country who support this bill. I also ask unanimous consent to print a technical summary of the bill; a side-by-side comparison with current law; an open letter to Congress from our former Secretary of Agriculture, Ambassador Clayton Yeutter; and the next of the AgJOBS bill.

There being no objection, the material was ordered to be printed in the RECORD, as follows:


American Nursery & Landscape Association; National Council of Agricultural Employers; New England Apple Council.


Agricultural Affiliates; American Farm Bureau Federation; American Frozen Foods Institute; American Horse Council; American Mushroom Institute; CoBank-Northeast Farm Credit Regional Council; Council of Northeast Farmer Cooperatives; National Association of State Departments of Agriculture; National Cattleman's Beef Association; National Chicken Council; National Christmas Tree Association; National Cotton Council; National Council of Farmer Cooperatives; National Potato Council; National Watermelon Association, Inc.; Nisei Farmers League; Northeast Dairy Coops; Northern Christmas Tree Growers; Northern Ohio Growers Association; Northwest Horticultural Council.
Society of American Florists; United Egg Association; United Egg Producers; United Fresh Fruit & Vegetable Association;
U.S. Apple Association; U.S. Custom Harvesters Association; Western Growers Association; Agricultural Council of California; Alabama Farmers Federation; Alabama Nursery Association; Arizona Nursery Associations; Arkansas Green Industry Association; Associated Landscape Contractors of Colorado; Associated Landscape Contractors of Massachusetts; California Association of Nurserymen; California Citrus Mutual; California Farm Bureau; California Grape and Tree Fruit League; Nursery Growers Association (CA); Colorado Nursery Association.

Connecticut Nursery & Landscape Association; Florida Citrus Mutual; Florida Farm Bureau Federation; Florida Nurserymen & Growers Association; Florida Fruit and Vegetable Association; Georgia Green Industry Association; Gulf Citrus Growers, Association; Idaho Nursery Association: Illinois Landscape Contractors Association; Illinois Nurserymen's Association; Illinois Specialty Growers Association; Indiana Nursery & Landscape Association; Iowa Nursery and Landscape Association; Kansas Nursery and Landscape Association; Kentucky Nursery & Landscape Association; Louisiana Nursery & Landscape Association; Massachusetts Nursery & Landscape Association; Michigan Nursery and Landscape Association; Minnesota Nursery & Landscape Association; Mississippi Nursery Association.
Missouri Landscape & Nursery Association; New England Nursery Association; New Jersey Nursery & Landscape Association; New York State Nursery & Landscape Association; New York State Vegetable Growers Association; North Carolina Association of Nurserymen; Northern California Growers Association; Nursery Growers of Lake County Ohio, Inc.; Ohio Nursery & Landscape Association; Oregon Association of Nurserymen; Oregon Farm Bureau Federation; Pacific Tomato Growers; Pennsylvania Landscape & Nursery Association; Rhode Island Nursery and Landscape Association; Senseny South Corporation; Snake River Farmers Association; South Carolina Nursery Association; Southern Nursery Association; State Horticultural Association of Pennsylvania; Tennessee Nursery & Landscape Association.
Texas Nursery & Landscape Association; Texas Produce Association; Turfgrass Producers International; Ventura County Agriculture Association; Virginia Agricultural Growers Association; Virginia Nursery and Landscape Association; Wasco County Fruit & Produce League; Washington Growers Clearing House Association, Inc.; Washington Growers League; Washington Potato & Onion Association; Washington State Nursery & Landscape Association; Western Grower Law Group; West Virginia Nursery and Landscape Association; Wisconsin Nursery Association; Wisconsin Landscape Federation; Wisconsin Christmas Tree Producers.



Title I establishes a program whereby agricultural workers in the United States who lack authorized immigration status but who can demonstrate that they have worked 100 or more days in a 12 consecutive month period during the 18-month period ending on August 31, 2003 can apply for adjustment of status. Eligible applicants would be granted temporary resident status. If the farmworker performs at least 360 work days of agricultural employment during the 6-year period ending on August 31, 2009, including at least 240 work days during the first 3 years following adjustment, and at least 75 days of agricultural work during each of three 12-month periods in the 6-years following adjustment to temporary resident status, the farmworker may apply for permanent resident status.

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


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

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

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

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

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


The recent tragic truck-trailer deaths of Mexican workers seeking illegal entry to the U.S. have raised once again the wisdom and feasibility of our immigration policies at the U.S./Mexico border. This is an issue that many of us in American agriculture have tried to address over the years, but few have listened. Perhaps our views can now be heard.

Many of the workers entering the U.S. from Mexico are hoping for jobs on farms or in nurseries. As you know, such jobs often await them, for thousands of American farmers wonder every year whether they'll have dependable help at harvest time. This is especially critical for our fruit and vegetable industries, where the "open window" for harvest can be very short-lived. But similar concerns are now emerging in many other farm enterprises, ranging from dairy to poultry to greenhouse crops to beef to Christmas trees. This has become a national problem, and a recurring nightmare for our agricultural employers nationwide.

Government statistics and other evidence suggest that at least 50% and perhaps 70% of the current agricultural workforce is not in this country legally. The immediate reaction of some is to say that these workers have broken the law and should be deported, and that U.S. farmers and other employers have brought this problem on themselves by not doing a better job of detecting fraudulent documents.

That "easy" answer ignores the reality that few Americans are drawn to highly seasonal and physically demanding work in agriculture. At chaotic harvest times, a stable, dependable workforce is essential. Instead, American farmers are in a "damned if you do, damned if you don't" situation where they're required by law to be policemen, immigration officials, and security experts while simultaneously trying to get their crops harvested before they spoil.

My experience over many years tells me that agricultural employers do not want to hire illegal immigrants. What they want is a stable, viable program with integrity that will meet their labor force needs in a timely, effective way. What they do not want is a program with major shortcomings, for which they will inevitably be blamed. Unfortunately, that is what our laws have imposed upon them.

As a nation, we can and must do better—for agricultural employers and for immigrant workers. Many of these workers have come to the U.S. on a regular basis. Many have lived here for years doing our toughest jobs, and some would like to earn the privilege of living here permanently. Why not permit them to do so, over a specified timeframe, thereby keeping the best workers here? That has the additional advantage of permitting our government to better focus its limited monitoring/enforcement resources, particularly where security may be a concern. Let's use entry/exit tracking, tamper proof documentation, biometric identification, etc. where it will truly pay security dividends, and let's stop painting all immigrants with the same brush.

A limited, earned legalization for agriculture is nothing like an amnesty program. It would apply only to immigrants who are at work, paying taxes, and are willing to earn their way to citizenship so that they can share in the American dream. These workers form the foundation of much of our nation's agricultural workforce. We need them!

Agricultural employers need an updated guest work program to replace the antiquated "H2A" temporary worker system, which is too expensive and too bureaucratic to be of practical use. Necessary reforms include fair and stronger security and identification measures, market-based wage rates, and comprehensive application procedures.

The reform program I have outlined already has broad bipartisan support, thanks to the good work and leadership of Sens. Larry Craig, Gordon Smith, Ted Kennedy, and Bob Graham, among others, and a bipartisan group of House colleagues.
Their work product deserves immediate and serious consideration by the Congress. The status quo is simply unacceptable.
It puts both American employers and immigrant workers in an untenable situation—with a high cost in economic efficiency, respect for the law, and sometimes even in human life. The reforms now being proposed are a practical solution to a serious problem that is evolving into a national crisis.

As President Bush has stated, we can and must do better to match a willing and hardworking immigrant worker with producers who are in desperate need of a lawful workforce. It is time, and in our great country's interest, to enact these reforms.


(Former Agriculture Secretary and U.S. Trade Representative).

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