FAIR Legislative Update September 19, 2011
In a hearing last Thursday, the House Judiciary Committee heard statements and commentary on the much-anticipated mandatory E-Verify bill. (H.R. 2885) After releasing a new version of the legislation last Monday, House Judiciary Committee Chairman Lamar Smith (R-TX) held the first of what will likely be several mark-ups of the bill. Thursday’s hearing consisted only of opening statements from committee members, allowing general commentary on the bill. No amendments or changes have yet been offered to the E-Verify bill.
The committee began with a statement from the Chairman and bill sponsor Rep. Lamar Smith. Rep. Smith argued that mandatory E-Verify would help reduce the alarming level of unemployment facing Americans. (Statement of Judiciary Committee Chairman Lamar Smith, Sept. 15, 2011) He stated that 23 million Americans are unemployed or cannot find full-time work, yet seven million aliens are working in the U.S. illegally. (Id.) “Anyone who cares about helping unemployed Americans should care about opening up jobs for [Americans and legal residents],” he asserted. (Id.) Rep. Smith also noted that E-Verify has overwhelming support from the American public. (Id.)
Although generally in support of Chairman Smith’s bill, some Republican offered suggestions on how to improve the legislation. Rep. Steve King (R-IA) remarked with praise that “most of what is in this bill is good.” Rep. King rebuffed suggestions that the E-Verify system is fraught with errors and not sufficiently refined to require its use. “How do you get a database to be perfect?” he asked. “You use it!” Importantly, Rep. King also expressed concern over the bill’s preemption provision. He explained that if the preemption provision—which limits states’ ability to go after employers—remains in the bill, states would not be able to enforce the law when the government abandons its responsibilities.
Rep. Dan Lungren (R-CA) expressed different concerns: namely that a federal mandatory E-Verify bill would hurt the agriculture industry, particularly in his home state of California. Although H.R. 2885 provides the agricultural employers three years to comply and even then does not require the verification of returning seasonal workers Rep. Lungren vehemently objected to what he considered the bill’s failure to address the labor needs of agricultural employers. “Anyone who suggests we can do it all with American workers does not understand agriculture,” he said. He then said it would be hard for him to support the mandatory E-Verify bill unless the agriculture industry gets a new, expansive guest worker program.
Democrat committee members, on the other hand, spoke out strongly against H.R. 2885. Ranking Member John Conyers (D-MI) said that even though he does not reject the notion that the committee should protect the jobs of U.S. citizens, mandatory E-Verify would only push illegal workers into the shadows and result in the loss of tax revenues. Protesting that the current E-Verify program is riddled with errors, he argued mandatory E-Verify would make it more difficult for even legal workers to get jobs. Rep. Zoe Lofgren (D-CA) agreed with Rep. Conyers, saying mandatory E-Verify would decimate the agriculture industry and would result in employers hiring workers as independent contractors to get around verification requirements.
Upon completion of opening statements by the committee Members, Chairman Smith announced that mark-up of E-Verify legislation will continue in the House Judiciary Committee next Wednesday. Already numerous amendments have been filed.
Rep. Dan Lungren (R-CA) last week introduced the “Legal Agricultural Workforce Act,” legislation that would create a large new agricultural guest worker program in addition to existing guest worker programs. (See H.R. 2895) Rep. Lungren’s bill would create a new “W” visa program to admit foreign agricultural labor as an alternative to both the current H-2A guest worker program and to Rep. Lamar Smith’s (R-TX) “American Specialty Agriculture Act,” which significantly amends the H-2A program. (H.R. 2895 at § 2(a); See FAIR’s Legislative Update, Sept. 12, 2011) The W agricultural guest worker program would be administered by the Department of Agriculture, in conjunction with the Department of Homeland Security.
To be eligible to apply for enrollment into the W agricultural guest worker program, employers must satisfy only two requirements. First, they must enroll in the Department of Labor’s Electronic Job Registry, which requires them to provide information describing the time period for which workers are needed, wages, and other terms of employment. (Id. at 2(b)(1)(b)) Secondly, the employer must keep a record of all qualified U.S. workers who respond to the Electronic Job Registry posting and provide that record in its request to enroll in the program. (Id.)
Under the bill, the Secretary of Agriculture “shall approve” all requests for enrollment into the program so long as:
- the employer is an agricultural employer and the employee is employed for agricultural work (Id. at § 2(b)(1); see 29 U.S.C. 1802);
- the employer submits the requisite information, which includes
- the total number of workers needed each month and the qualifications for such worker
- the type of agricultural work required by such workers
- the anticipated beginning and ending dates for the work
- a copy of the information submitted to the Electronic Job Registry
- the record of American workers who have responded to the job posting
- a description of the need for such workers (Id. at § 2(b)(1));
- the employer does not simultaneously employ or petition for a worker under the H-2A program (Id. at § 2(b)(1)(e)(1)(C)); and
- the employer is not otherwise disqualified (Id. at § 2(b)(1)(e)(1)(D)).
Instead of setting a specific numerical cap, H.R. 2895 provides that the cap for the W visa program shall be set by rule, and that employers may petition for an increase of that cap. (Id. at 2(b)(1)(a)(2)) Guest workers subject to the cap will be granted W visas according to a preference system. (Id. at § 2(b)(1)(g)) Visas must first be made available to those whom the employer decides to specifically identify, as employers have the option of seeking aliens from a specific country or even requesting them by name. (Id. at § 2(b)(1)(g)(1)(A)) Visas must next be made available to nonimmigrant agricultural workers who have been previously employed in agricultural employment in the U.S. with priority given to those who had been employed the longest—regardless of whether they were legally authorized to work. (Id. at § 2(b)(1)(g)(1)(B)) Finally, the remaining visas are to be made available to other nonimmigrant agricultural workers in the order in which they applied. (Id. at § 2(b)(1)(g)(1)(C))
H.R. 2895 places several obligations on employers who enroll into the W visa program. These include:
- employers cannot displace U.S. workers to hire guest workers (unless for good cause) (Id. at §§ 2(b)(1)(f)(1));
- employers must offer the job to eligible U.S. workers who apply and possess equal or superior qualifications for the job than guest workers (Id. at §§ 2(b)(1)(f)(2));
- employers must provide worker’s compensation benefits (Id. at §§ 2(b)(1)(f)(3));
- employers cannot use the program to hire guest workers because current employees are engaged in a labor dispute (Id. at §§ 2(b)(1)(f)(4)); and
- employers cannot employ a guest worker under the program for services other than agricultural (Id. at §§ 2(b)(1)(f)(5)).
Employers committing “serious violations” of the program’s requirements may be barred from future enrollment in the program for up to three years. (Id. at §§ 2(b)(1)(f)(6)) However, H.R. 2895 does not otherwise set forth specific penalties and fines for employers who violate the requirements of the W visa program, but instead provides that the Secretary of Agriculture should determine the consequences by rule.
The bill contains few requirements for aliens applying for a visa under the proposed program. They must plan to engage in agricultural employment, pass a security and criminal background check as specified by the Homeland Security Secretary, and not have violated a material term or condition of a previous admission as an agricultural guest worker. (Id. at §§ 2(b)(1)(g)(3), 2(b)(1)(i)(1))The bill does not bar aliens currently residing and/or working in the country illegally from obtaining a visa. In fact, aliens may be accepted into the program without a job offer and the Secretaries of State, Agriculture, and Labor must establish a system for providing information on agricultural employment opportunities to them. (Id. at § 2(b)(1)(i)(4))
FAIR’s sources have indicated that Rep. Lungren intends to introduce H.R.2895 as an amendment to Rep. Smith’s “American Specialty Agriculture Act” during the scheduled House Judiciary Committee mark-up this Wednesday. Stay tuned to FAIR for more details…