FAIR Legislative Update September 12, 2011
Last Wednesday, Chairman of the House Judiciary Committee Lamar Smith (R-TX) introduced legislation that creates a new guest worker program to import agricultural workers. The bill, H.R. 2847, seeks to replace the existing H-2A visa program, an agricultural guest worker program created in 1986 as part of under the Immigration Reform and Control Act (IRCA). In a statement regarding the introduction of the “American Specialty Agriculture Act,” Chairman Smith complained that the H-2A program is flawed, stating that “even though Congress devised the H-2A program to meet the needs of our growers, half of farm workers remain illegal immigrants. This is because, as the Department of Labor has admitted, most growers ‘find the H-2A program so plagued with problems that they avoid using it altogether.’” (Statement of Judiciary Committee Chairman Member Lamar Smith, Sept. 8, 2011)
Smith’s bill proposes to replace the H-2A program with an entirely new H-2C visa program. This new visa program, he says, will be more responsive to the needs of American agriculture employers. The major changes proposed in the H-2C program include:
- Significantly expanding the scope of the guest worker program to include all agricultural workers instead of only “temporary” or “seasonal” agricultural workers, as allowed under the H-2A program. The Chairman would like for other agricultural farmers to be able to receive foreign workers under the new visa program, however this change allows significant new categories of workers to come in under the H-2A program, including dairy farm workers.
- Transferring administration of the program from the Department of Labor, which currently administers all guest worker programs, to the Department of Agriculture. Chairman Smith expects that the Agriculture Department will be more aware of the labor needs of growers. Opponents, however, argue that the Department of Agriculture is too friendly with the agribusiness industry and that the Department of Labor has more experience in determining fair wages and working conditions.
- Allowing employers of H-2C holders to provide housing vouchers to guest workers instead of actual housing. Under the current H-2A program, employers do have to provide free housing to workers who are not reasonably able to return home each day. Smith asserts that providing housing can be expensive, especially when employers have to maintain a property all year which is only needed for a short period of time. Without proper regulation, however, visa workers are often forced to live in sub-standard conditions as the employer seeks to increase profits.
- Requiring a reimbursement of transportation costs to the agriculture worker only if the worker completes 50 percent of the work he has contracted to do. Although this was also a regulation under the H-2A visa program, a subsequent 11th Circuit Federal court decision declared that employers have a responsibility to reimburse workers for their transportation costs from their home country in the first workweek so as to prevent effectively lower the workers’ weekly wages below minimum wage. The American Specialty Agriculture Act rejects this court decision.
- Eliminating the current 50 percent rule, which requires that employers provide a job to U.S. workers who apply up until 50 percent of an H-2A worker’s employment contract period has been completed. Under H.R. 2847, the new H-2C program only requires employers to hire qualified U.S. workers who present themselves for the job up until the day the H-2C worker begins work.
- Setting the H-2C cap at 500,000 visas each year. The current H-2A program does not have a cap, although the number of H-2A guest workers admitted annually has grown from only 46,000 in 2006 to only 119,204 in 2010. Thus, a cap this large, combined with the expanded scope of workers permitted to use the H-2C program, could significantly increase the number of guest workers entering the U.S. each year.
H.R. 2847 provides that the H-2C program will begin two years after enactment, at which point the H-2A program will sunset. For the two year transitional period, however, H.R. 2847 reinstates the Bush-era H-2A regulations (repealed by the Obama Administration) for the H-2A program. The Bush regulations will make the H-2A program attestation-based system instead of a more rigorous labor certification system which requires more documentation from the employers demonstrating they attempted to find U.S. workers. Smith claims reinstating the Bush regulations will encourage agricultural employers to use a legal agricultural worker program because they will not be overwhelmed with what they consider red-tape, paperwork and procedural difficulties.
Last Thursday, the House Subcommittee on Immigration Policy and Enforcement held a hearing on Rep. H.R. 2847. Chairman of the Subcommittee, Elton Gallegly (R-CA) announced his full support for the bill. Ranking Member Zoe Lofgren (D-CA), however, argued that the “real reason” for the bill is to pass mandatory E-verify with the support of the agriculture industry. Chairman Smith introduced a bill which would make E-Verify mandatory nationwide earlier this year. (H.R. 2164)
During the hearing, the House Subcommittee hearing heard testimony from several different experts on agricultural labor. Deputy Director of the North Carolina Growers Association, Lee Wicker, testified that while realizes Rep. Smith’s H-2C bill is not perfect, “from the perspective of a group of long term H-2A program users this bill is close enough.” President and CEO of Titan Farms in South Carolina, Chalmers Carr, also testified in support of the bill. Mr. Carr described to the subcommittee what he considers the various shortfalls in the current H-2A program, shortcomings which he stated greatly increase the cost of business and make it difficult to compete with businesses that hire illegal aliens. In addition, Dan Fazio, Director of the Washington Farm Labor Association, offered testimony which pointed out that the proposed H-2C program would make improvements over the current H-2A system.
Testifying in opposition, however, was Robert Williams, Director of the Migrant Farmworker Justice Project for Florida Legal Services. Mr. Williams argued that a new guest worker program will not work to solve the problems of instability in the agricultural labor market. In fact, Williams argued that another guest worker program will only make matters worse. Underlying the issue, he asserted in testimony, is that the U.S. has a chronically unstable agricultural labor market that requires constant replenishment with new workers from abroad. Mr. Williams argued that the issues with H-2A visas, such as a lack of worker protections, will become much worse under Rep. Smith’s proposed legislation.
The bill will now be marked-up by the full House Judiciary Committee at a date which is still to be determined.
The House Homeland Security Committee held a hearing Wednesday to assess progress made in our national security since the September 11 terrorist attacks. The hearing addressed several unfulfilled recommendations by the 9/11 Commission and the U.S. Government Accountability Office (GAO), including the need for the biometric exit system portion of the U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) and implementation of the REAL ID Act.
Former Congressman and Co-Chair of the National Security Preparedness Group at the Bipartisan Policy Center lamented the fact that the exit portion of the visa tracking system known as US-VISIT has not been completed. “It is vitally important to the security of our country to have a biometric exit system,” responded Mr. Hamilton, in response to a question from Rep. Candice Miller (R-MI) regarding visa overstays. “A biometric exit system is required by law, but DHS will tell you they don’t have enough money to pay for it … They need to go before Congress and ask for it,” he continued. Former Homeland Security Secretary Tom Ridge, who also testified before the Committee, conveyed his concern over a lack of exit system as well. “We have instituted an entry system to validate who comes into the country, but have not created an exit system that ensures these same visitors leave….” he said. “Where are they now and what are they doing? Where is the sense of urgency needed to address this?”
Former Congressman Hamilton also expressed disapproval of DHS’ failure to implement the REAL ID Act as required by Congress. “[T]he states’ compliance with DHS regulations for more secure driver’s licenses has been delayed to 2013 by DHS. This delay in compliance creates vulnerabilities and makes us less safe. No further delay should be authorized, and instead the deadline should be accelerated,” he told the Committee.
Despite the well-known need for the US-VISIT and REAL ID programs, DHS continually fails to request adequate funding or have a plan for fully implementing them. For example, in his FY 2011 budget, President Obama proposed a $39 million cut to US-VISIT, from $374 million in FY2010 to $335 million. (FY2011 Budget Request Appendix: DHS; see FAIR Legislative Update, Feb. 9, 2010). Moreover, according to several GAO reports on US-VISIT, DHS still does not have a plan for executing the exit portion of the system, suggesting it is not a high priority for the administration. (See GAO-10-13, Nov. 2009; see also GAO-07-378T and GAO-07-248) DHS has also tried over the course of several years to do away with REAL ID. The security standards required by the REAL ID Act were originally scheduled to take effect on May 11, 2008, three years after its passage. However, DHS pushed back the implementation date to May 11, 2011. Then, just months before that deadline was to take place, DHS announced yet another delay until January 15, 2013. (See FAIR Website, Mar. 2011)
President Obama’s uncle Onyango Obama was quietly released from jail last week after being arrested on drunk driving charges last month. (Boston Globe, Sept. 9, 2011) U.S. immigration officials detained Onyango after the arrest due to an outstanding warrant, issued after Onyango failed to leave the country despite deportation orders issued in 1992. (See FAIR Legislative Update, Sept. 6, 2011) According to a statement from the public affairs office of U.S. Immigration and Customs Enforcement (ICE), Obama will be required to check in with immigration officials regularly. (CNN, Sept. 9, 2011)