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Public Statements

Emergency Supplemental Appropriations Act, 2005

Location: Washington, DC



Mr. KENNEDY. Mr. President, it is a privilege to join with Senator Craig in offering the Agricultural Jobs, Opportunity, Benefits, and Security amendment.

America has a proud tradition as a nation of immigrants and a nation of laws, but our current immigration laws have failed us. Much of the Nation's economy today depends on the hard work and the many contributions of immigrants. The agricultural industry would grind to a halt without immigrant farmworkers. Yet the overwhelming majority of these workers are undocumented and are, therefore, easily exploited by unscrupulous employers.

Our AgJOBS bill corrects these festering problems. It gives farmworkers and their families the dignity and justice they deserve, and it gives agricultural employers a legal workforce.

Impressive work has been done by many grassroots organizations to make AgJOBS a reality. They have demonstrated true statesmanship by putting aside strongly held past differences to work together for the common good. We have our own responsibility to join in a similar way to approve this needed reform that is years overdue.

I commend Senator Craig and Congressmen BERMAN and CANNON for their leadership. I urge my colleagues to wholeheartedly endorse the AgJOBS bill.

Our bill reflects a far-reaching and welcome agreement between the United Farm Workers and the agricultural industry to meet this urgent need, and Congress should make the most of this unique opportunity for progress.

Our bill has strong support from business and labor, civic and faith-based organizations, liberals and conservatives, trade associations and immigrant rights groups. More than 500 organizations across the country support it.

AgJOBS is a bipartisan compromise reached after years of negotiations. Both farmworkers and growers have made concessions to reach this agreement, but each side has obtained important benefits.

In contrast, opponents offer a one-sided proposal that has failed to win the broad support AgJOBS has received. I urge my colleagues to oppose it. It vastly favors employers at the expense of farmworkers. It makes harsh revisions to the current agricultural guest worker program and creates a new blue card program for undocumented workers without a path to permanent residence, and without any meaningful governmental oversight to prevent labor abuses.

Agricultural employers would have the freedom to avoid hiring U.S. workers, displace U.S. workers already on the job, and force both U.S. workers and guest workers to accept low wages. They could do all this by claiming they can't find any U.S. workers. Even when the few labor protections are violated, workers would have no meaningful ability to enforce their legal rights.

This program would return us to the dark and shameful era of the Bracero Program where abuses were rampant and widely tolerated. That is unacceptable. We must learn from our mistakes and not repeat them.

The Chambliss amendment also ignores the needs of many growers and farmworkers. It offers no solution to the basic problem faced by agricultural employers--the problem that an overwhelming majority of the workers are undocumented. By offering no path to permanent residence for these undocumented workers, none of the guest workers, no matter how long they have worked, will ever be able to earn their permanent status.

Perhaps more troubling is the amendment's repeal of the longstanding adverse effect wage rate under the current program. This wage rate was created during the Bracero Program as a necessary program against the depression in wages caused by guest worker programs. The Chambliss proposal would replace it with a prevailing wage standard, substantially lower than the adverse effect wage rate. It would be based on the employer's own survey of prevailing wages rather than the Labor Department's survey. Farmworkers, who are already the lowest paid workers in the United States, would see their wages drop even lower. In contrast, the AgJOBS bill preserves the adverse effect wage rate while recommendations are made to Congress to resolve these long-contested pay issues.

The Chambliss amendment also eliminates the key provision that gives U.S. workers a job preference by employers who request guest workers. It would end the longstanding 50 percent rule which requires employers to hire qualified U.S. workers who applied during the first half of the season. Studies have shown that this rule is a valid protection.

In addition, the Chambliss amendment would end what they call positive recruitment--the obligation of employers to look for U.S. workers outside of the government job service which currently provides farmworkers with agricultural jobs. This proposal creates a new guest worker program for the undocumented that would offer them visas that would be valid only for 3 years and renewable for up to 6 additional years. They would have no opportunity to earn a green card no matter how many years they worked in the United States. In fact, they would actually lose their status if they merely filed an application to become a permanent resident.

Senator Chambliss believes that undocumented farmworkers will come out of the shadows and sign up for such a temporary worker program, but they are highly unlikely to do so. The vast majority will be deported after their temporary status expires. Registering as the first step towards deportation is unfair, and it just won't work.

In contrast, the AgJOBS bill offers farmworkers a genuine earned adjustment program that will put these workers and their families on a path to permanent residence. Hard-working, law-abiding farmworkers will be able to come out of the shadows. The Chambliss amendment is far less satisfactory than the AgJOBS proposal, and I urge my colleagues to oppose it.

Opponents of the AgJOBS bill claim that we are rushing this bill through Congress without full and careful consideration. This claim is without merit. Since 1998, the Immigration Subcommittee has held three hearings that have fully examined our agricultural workforce problems and the need to reform our immigration laws. Last year, we considered the issue once more. Legislation to address this problem has been introduced by both Republicans and Democrats in every Congress since 1996.

In September 2000, a breakthrough occurred, and both sides agreed to support compromise legislation that won broad bipartisan congressional support. Unfortunately, attempts to enact it were blocked in the lameduck session that year. The election of President Bush in 2000 changed the dynamics of the agreement, and the compromise fell apart.

A compromise was finally reached in September 2003 which led Senator Craig and me to introduce the AgJOBS bill. Last Congress, we had, as Senator Craig has pointed out, 63 Senate cosponsors, nearly evenly divided between Democrats and Republicans. Despite such strong bipartisan support, the leadership last year blocked our attempt to obtain a vote on this legislation. This is the second Congress in which Senator Craig and I have introduced the AgJOBS bill. Congress has had extensive discussions of this legislation in the past, and it is long past time for us to act.

Opponents of our amendment have offered no workable solutions. We cannot be complacent any longer. It is time for a new approach.

The American people want commonsense solutions to real problems such as immigration. They want neither open borders nor closed borders. They want smart borders. They are neither anti-immigrant nor anti-enforcement. Instead, they are anti-disorder and anti-hypocrisy. They want the Federal Government to get its act together, to set rules that are realistic and fair, and to follow through and enforce these realistic rules effectively and efficiently.

AgJOBS meets these goals. It addresses our national security needs, reflects current economic realities, and respects America's immigrant heritage.

The status quo is untenable. In the last 10 years, the U.S. Government has spent more than $20 billion to enforce our immigration laws. We have tripled the number of border security agents, improved surveillance technology, installed other controls to strengthen border enforcement, especially at the southwest border. None of these efforts have been adequate. Illegal immigration continues.

The proof is in the numbers. Between 1990 and 2000, the number of undocumented immigrants doubled from 3.5 million to 7 million. Today that number is nearly 11 million, with an average annual growth of almost 500,000. Those already here are not leaving, and new immigrants keep coming in. Massive deportations are unrealistic as a policy, impractical to carry out, and unacceptable to businesses that rely heavily on their labor.

Obviously, we must control our borders and enforce our laws, but we first need realistic immigration laws that we can actually enforce. The AgJOBS bill is a significant step. By bringing these illegal workers out of the shadows, we will enable law enforcement to focus its efforts on terrorists and violent criminals. We will reduce the chaotic, illegal, all too deadly traffic of immigrants at our borders by providing safe opportunities for farmworkers and their families to enter and leave the country.

The AgJOBS bill enhances our national security and makes our communities safer. It brings the undocumented farmworkers and their families out of the shadows and enables them to pass through security checkpoints. It shrinks the pool of law enforcement targets, enables our offices to train their sights more effectively on the terrorists and the criminals. The undocumented farmworkers eligible for this program will undergo rigorous security checks as they apply for legal status. Future temporary workers will be carefully screened to meet security concerns.

The AgJOBS amendment provides a fair and reasonable way for undocumented agricultural workers to earn legal status. It reforms the current visa program so that agricultural employers unable to hire American workers can hire needed foreign workers. Both of these components are critical. They serve as the cornerstone for comprehensive immigration reform of the agricultural sector.

Undocumented farmworkers are clearly vulnerable to abuse by unscrupulous labor contractors and growers. They are less likely than U.S. workers to complain about low wages, poor working conditions, or other labor law violations. Their illegal status deprives them of bargaining power and depresses the wages of all farmworkers. These workers are already among the lowest paid of all workers in America. According to the most recent findings of the national agricultural workers survey issued last month, their average individual income is between $10,000 and $12,000 a year. The average annual family income is $15,000 to $17,000.

Thirty percent of their households live below the poverty line. Only half of them own a car and even fewer own a home or even a trailer. By legalizing these farmworkers, the threat of deportation is removed. They will be on equal footing with U.S. workers and the end result will be higher wages, better working conditions, and upward job mobility for all workers.

Opponents of reform continually mislabel any initiative they oppose as ``amnesty'' in a desperate attempt to stop any significant reform. Instead of proposing ways to fix our current broken system, they are calling for more of the same--increased enforcement of broken laws. However, enforcing a dysfunctional system only leads to greater dysfunction.

The AgJOBS bill is not an amnesty bill. The program requires farmworkers to earn legal status. They must demonstrate not only contributions but also a substantial future work commitment before they earn the right to remain in our country.

First, they will receive temporary resident status, based on their past work experience. They must have worked for at least 100 work days in agriculture by December 31, 2004. To earn permanent residence, they must fulfill a prospective work requirement. They must work at least 360 days in agriculture during a six-year period. At least 240 of those 360 work days must occur during the first 3 years. Temporary residents who fail to fulfill the prospective agricultural work requirement will be dropped from the program and required to leave the country.

It's not amnesty if you have to earn it. AgJOBS offers farm workers a fair deal: if they are willing to work hard for us, then we're willing to do something fair for them. It's the only realistic solution.

Contrary to statements made by its critics, AgJOBS does not provide a direct path to citizenship. Farm workers would first earn temporary residence if they provide evidence of past work in agriculture. The next step would be permanent residence, but only after they have completed thousands of hours of backbreaking work in agriculture--a process that could take up to 6 years. Once they earn permanent residence, these farm workers would have to wait another 5 years to be able to apply for citizenship. At that point, they would have to pass an English and civics exam, and go through extensive backgrounds checks. This process is long and arduous, as it should be. There is nothing direct about it.

To be eligible for legal status, applicants must be persons of good moral character and present no criminal or national security problems. Whether they are applying here or at U.S. consulates abroad, all applicants will be required to undergo rigorous security clearances. Like all applicants for adjustment of status, their names and birth dates must be checked against criminal and terrorist databases operated by the Department of Homeland Security, the FBI, the State Department, and the CIA. Applicants' fingerprints would be sent to the FBI for a criminal background check, which includes comparing the applicants' fingerprints with all arrest records in the FBI's database.

Contrary to arguments made by detractors of AgJOBS, terrorists will not be able to exploit this program to obtain legal status. Anyone with any ties to terrorist activity is ineligible for legal status under our current immigration laws, and would be ineligible under the AgJOBS bill. Our proposal has no loopholes for terrorists.

Opponents of AgJOBS claim that this bill is soft on criminals. Wrong again. AgJOBS has the toughest provisions against those who commit crimes--tougher than current immigration law. Convictions for most crimes will make them ineligible to obtain a green card. Generally, these convictions include violent crimes, drug crimes, theft, and domestic violence. AgJOBS goes even further. Applicants can be denied legal status if they commit a felony or three misdemeanors. It doesn't matter whether the misdemeanors involve minor offenses--three misdemeanors and you are out, no matter how minor the misdemeanors. In addition, anyone convicted of a single misdemeanor who served a sentence of 6 months or more would also be ineligible. These rules are additional requirements that do not apply to other immigrants and they cannot be waived by DHS.

There are those who would prefer to disqualify a farm worker who commits even a single minor misdemeanor, with no jail time. But that goes too far. In some States, it's a misdemeanor to put trash from your home into a roadside trash can. It's a misdemeanor to park a house trailer in a roadside park, or have an unleashed dog in your car on a State highway, or go fishing without a license.

If we're serious about this proposal, minor offenses like these shouldn't have such harsh consequences. We'd be severely punishing hard-working men and women for minor mistakes, and tearing these immigrant families apart.

It's hard to imagine any public purpose that would be served by such a severe punishment. But it's easy to imagine all the heart-wrenching stories and nightmares created by this proposal for people caught by its provisions. Many of these farm workers have lived in America with their families for many years. They've established strong ties to their communities, paid their taxes, and contributed to our economy. They deserve better than a punishment out of all proportion to their offense.

Opponents of AgJOBS also claim that it will be a magnet for further illegal immigration. Once again, they are wrong. To be eligible for the earned adjustment program, farm workers must establish that they worked in agriculture in the past. Farm workers must have entered the United States prior to October, 2004. Otherwise, they are not eligible. The magnet argument is false. New entrants who have not worked in agriculture won't qualify for this program.

Hard-working migrant farm workers are essential to the success of American agriculture. We need an honest agriculture policy that recognizes the contributions of these men and women, and respects and rewards their work.

Our bill will modify the current temporary foreign agricultural worker program, while preserving and enhancing key labor protections. It strikes a fair balance. Anything else would undermine the jobs, wages, and working conditions of U.S. workers.

For many employers, the current program is a bureaucratic nightmare. Few of them use the program, because it is so complicated, lengthy, uncertain, and expensive. Only 40,000-50,000 guest workers are admitted each year--barely 2 to 3 percent of the estimated total agricultural work force.

To deal with these problems, the bill streamlines the H-2A program's application process by making it a ``labor attestation'' program similar to the H-1B program, rather than the current ``labor certification'' program. This change will reduce paperwork for employers and accelerate processing.

Employers seeking temporary workers will file an application with the Secretary of Labor containing assurances that they will comply with the program's obligations. The application will be accompanied by a job offer that the local job service office will post on an electronic job registry at least 28 days before the job begins. In addition, the employer must post the position at the work site, notify the collective bargaining representative if one exists, make reasonable efforts to contact past employees, and advertise the position in newspapers read by farm workers.

Longstanding worker protections will continue in force. For example, the ``three-fourths minimum work guarantee'' will remain in effect. Employers will be required to guarantee work for at least three quarters of the employment period or pay compensation for any shortfall. The ``50% rule'' will also continue. Qualified U.S. workers would be hired as long as they apply during the first half of the season. No position could be filled by an H-2A worker that was vacant because of a strike or labor dispute. Employers will continue to reimburse workers for transportation costs and provide workers' compensation insurance coverage. Employers will be prohibited from discriminating in favor of temporary workers.

The bill will modify some current requirements in important ways. Employers must provide housing at no cost, or a monetary housing allowance in which the State governor certifies that sufficient farm worker housing is available. Employers will also be required to pay at least the highest of the State or Federal minimum wage, the local ``prevailing wage'' for the particular job, or an ``adverse effect'' wage rate.

For many years, the adverse effect wage rate has been vigorously debated, with most farm worker advocates arguing that the rate is too low, and most growers complaining that it is too high. The bill will freeze adverse effect wage rates for three years at the 2003 level, while studies and recommendations are made to Congress by the GAO and a special commission of experts. If Congress fails to enact an adverse effect wage rate formula within 3 years, this wage rate will be adjusted in 2006, and at the beginning of each year thereafter, based on the change in the consumer price index.

The Secretary of Labor will establish an administrative complaint process to investigate and resolve complaints alleging violations under the H-2A program. Violators will be required to pay back wages, and can also be given civil money penalties and be barred from the program.

In addition, the bill provides a significant new protection for H-2A workers--a private right of action in Federal court. Currently, these workers lack this right, and can seek redress in State courts only under State contract law. Such workers are also excluded from the Migrant and Seasonal Agricultural Worker Protection Act, which provides U.S. workers with protections and remedies in Federal court. Although the exclusion continues, our bill will permit workers to file a Federal lawsuit to enforce their wages, housing benefits, transportation cost reimbursements, minimum-work guarantee, motor vehicle safety protections, and other terms under their job offer.

Our bill will also unify families. When temporary residence is granted, a farm worker's spouse and minor children will be able to remain legally in the United States, but they will not be authorized to work. When the worker becomes a permanent resident, the spouse and minor children will also gain such status.

Mr. President, I have a letter from the AFL-CIO that calls AgJOBS a recent legislative compromise between farmworker advocates and agricultural employers. I ask unanimous consent that this letter be printed in the RECORD.

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

American Federation of Labor and Congress of Industrial Organizations,

Washington, DC, April 18, 2005.

DEAR SENATOR: On behalf of the AFL-CIO I urge you to support cloture on and passage of an amendment to the FY 2005 Supplemental Appropriations bill offered by Senators Craig and Kennedy--the Agricultural Job Opportunity, Benefits and Security Act (AgJOBS). I also strongly urge you to oppose an amendment offered by Senators Chambliss and Kyl as a substitute to AgJOBS. This amendment has inadequate worker protections and must be defeated.

The AgJOBS bill is a reasoned legislative compromise between farm worker advocates and agricultural employers. AgJOBS enjoys strong bipartisan support and would provide an avenue for 500,000 undocumented farm workers to qualify for an earned adjustment program that has a path to permanent residency. AgJOBS would both streamline the current H-2A agricultural guest-worker program and provide additional legal protections for migrant workers who hold H-2A visas. AgJOBS addresses both the growing concern over the high number of undocumented farm workers and the need for adjustments to the H-2A program so that we do not confront a similar crisis in the future. The Kennedy-Craig AgJOBS amendment is necessary immigration reform that will protect the rights and economic well-being of both immigrant and U.S. workers.

The Chambliss-Kyl proposal would radically change the H-2A program--stripping it of all labor protections and government oversight. This amendment would create a new year-round guest worker program with no meaningful labor protections and no role for the Department of Labor to enforce housing, pay, or other essential worker protections. The Chambliss-Kyl proposal would tie workers to particular employers and require them to leave the country if their jobs ended and no other employer petitioned for a visa for them within 60 days. It would allow employers to bring in a large numbers of vulnerable guest workers to fill year-round jobs for up to nine years without the ability to be united with their family members.

Also troubling is that the Chambliss-Kyl amendment would broaden the definition of seasonal agricultural workers to include ``related industries,'' which could include landscaping and food processing. Currently, the use of guest workers in these industries is capped and subject to additional labor market tests. The H-2A program is not subject to a cap. This further jeopardizes essential labor protections for a broader segment of the U.S. workforce. The Chambliss-Kyl proposal is bad for both U.S. and immigrant workers, bad for employers who want to employ a stable workforce, and it is a dangerous precedent in immigration and labor policy.


William Samuel,

Director, Department of Legislation.

Mr. KENNEDY. Mr. President, this mentions:

The Chambliss-Kyl proposal would radically change the H-2A program, stripping it of all labor protections and Government oversight. This amendment would create a new year-round guest worker program with no meaningful labor protections and no role for the Department of Labor to enforce housing, pay, or other essential worker protections. The Chambliss-Kyl proposal would tie workers to particular employers and require them to leave the country if their jobs ended and no other employer petitioned for a visa for them within 60 days.

I yield the floor.


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