(Senate - February 18, 2005)

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[Congressional Record Volume 151, Number 19 (Friday, February 18, 2005)]
[Pages S1710-S1712]
From the Congressional Record Online through the Government Publishing Office []

                           AgJOBS ACT OF 2005

 Mr. CRAIG. Mr. President, on February 10, I introduced S. 359, 
the Agricultural Job Opportunity, Benefits, and Security Act of 2005--
AgJOBS. I ask that materials I am submitting in support of that bill be 
printed in the Record.
  The material follows.

          The Need for AgJOBS Legislation--Now, February 2005

       Americans need and expect 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. All workers deserve decent 
     treatment and protection of basic rights under the law. 
     Consumers deserve a safe, stable, domestic food supply. 
     American citizens and taxpayers deserve secure borders, a 
     safe homeland, and a government that works. Yet we are being 
     threatened on all these fronts, because of a growing shortage 
     of legal workers in agriculture.
       To address these challenges, a bipartisan group of Members 
     of Congress has introduced the Agricultural Job Opportunity, 
     Benefits, and Security (AgJOBS) Act of 2005. This bipartisan 
     effort builds upon years of discussion and suggestions among 
     growers, farm worker advocates, Latino and immigration issue 
     advocates, Members of both parties in both Houses of 
     Congress, and others. In all substantive essentials, this 
     bill is the same as S. 1645/H.R. 3142 in the 108th Congress.

                              The Problems

       Of the USA's 1.6 million agricultural work force, more than 
     half is made up of workers not legally authorized to work 
     here--according to a conservative estimate by the Department 
     of Labor, based, astoundingly, on self-disclosure in worker 
     surveys. Reasonable private sector estimates run to 75 
     percent or more.
       With stepped-up documentation enforcement by the Social 
     Security Administration and the Bureau of Immigration and 
     Customs Enforcement (the successor to the old INS), persons 
     working here without legal documentation are not leaving the 
     country, but just being scattered. The work force is being 
     constantly and increasingly disrupted. Ag

[[Page S1711]]

     employers want a legal work force and must have a stable work 
     force to survive--but Federal law actually punishes ``too 
     much diligence'' in checking worker documentation. Some 
     growers already have gone out of business, lacking workers to 
     work their crops at critical times.
       Undocumented workers are among the most vulnerable persons 
     in our country, and know they must live in hiding, not 
     attract attention at work, and move furtively. They cannot 
     claim the most basic legal rights and protections. They are 
     vulnerable to predation and exploitation. Many have paid 
     ``coyotes''--labor smugglers--thousands of dollars to be 
     transported into and around this country, often under 
     inhumane and perilous conditions. Reports continue to mount 
     of horrible deaths suffered by workers smuggled in enclosed 
     truck trailers.
       Meanwhile, the only program currently in place to respond 
     to such needs, the H-2A legal guest worker program, is 
     profoundly broken. The H-2A status quo is slow, bureaucratic, 
     and inflexible. The program is complicated and legalistic. 
     DOL's compliance manual alone is over 300 pages. The current 
     H-2A process is so expensive and hard to use, it places only 
     about 30,000-50,000 legal guest workers a year--2 percent to 
     3 percent of the total ag work force. A General Accounting 
     Office study found DOL missing statutory deadlines for 
     processing employer applications to participate in H-2A more 
     than 40 percent of the time. Worker advocates have expressed 
     concerns that enforcement is inadequate.

                      The Solution--AgJOBS Reforms

       AgJOBS legislation provides a two-step approach to a 
     stable, legal, safe, ag work force: (1) Streamlining and 
     expanding the H-2A legal, temporary, guest worker program, 
     and making it more affordable and used more--the long-term 
     solution, which will take time to implement; (2) Outside the 
     H-2A program, a one-time adjustment to legal status for 
     experienced farm workers, already working here, who currently 
     lack legal documentation--the bridge to allow American 
     agriculture to adjust to a changing economy.
       H-2A Reforms: Currently, when enough domestic farm workers 
     are not available for upcoming work, growers are required to 
     go through a lengthy, complicated, expensive, and uncertain 
     process of demonstrating that fact to the satisfaction of the 
     Federal government. They are then allowed to arrange for the 
     hiring of legal, temporary, non-immigrant guest workers. 
     These guest workers are registered with the U.S. government 
     to work with specific employers and return to their home 
     countries when the work is done. Needed reforms would replace 
     the current quagmire for qualifying employers and prospective 
     workers with a streamlined ``attestation'' process like the 
     one now used for H-1B high-tech workers, speeding up 
     certification of H-2A employers and the hiring of legal guest 
     workers. Participating employers would continue to provide 
     for the housing and transportation needs of H-2A workers. New 
     adjustments to the Adverse Effect Wage Rate would be 
     suspended during a 3-year period pending extensive study of 
     its impact and alternatives. Other current H-2A labor 
     protections for both H-2A and domestic workers would be 
     continued. H-2A workers would have new rights to seek redress 
     through mediation and Federal court enforcement of specific 
     rights. Growers would be protected from frivolous claims, 
     exorbitant damages, and duplicative contract claims in State 
       The only experience our country has had with a broadly-used 
     farm guest worker program (used widely in the 1950s but 
     repealed in the 1960s) demonstrated conclusive, and 
     instructive, results. While it was criticized on other 
     grounds, it dramatically reduced illegal immigration while 
     meeting labor market needs.

                 Adjustment of workers to legal status

       To provide a ``bridge'' to stabilize the ag work force 
     while H-2A reforms are being implemented, AgJOBS would create 
     a new earned adjustment program, in which farm workers 
     already here, but working without legal authorization, could 
     earn adjustment to legal status. To qualify, an incumbent 
     worker must have worked in the United States in agriculture, 
     before January 1, 2005, for at least 100 days in a 12-month 
     period over the last 18 months prior to the bill's 
     introduction. (The average migrant farm worker works 120 days 
     a year.)
       This would not spur new immigration, because adjustment 
     would be limited to incumbent, trusted farm workers with a 
     significant work history in U.S. agriculture. The adjusting 
     worker would have non-immigrant, but legal, status. 
     Adjustment would not be complete until a worker completes a 
     substantial work requirement in agriculture (at least 360 
     days over the next 3-6 years, including 240 days in the first 
     3 years).
       Approximately 500,000 workers would be eligible to apply 
     (based on current workforce estimates). Their spouses and 
     minor children would be given limited rights to stay in the 
     U.S., protected from deportation. The worker would have to 
     verify compliance with the law and continue to report his or 
     her work history to the government. Upon completion of 
     adjustment, the worker would be eligible for legal permanent 
     resident status. Considering the time elapsed from when a 
     worker first applies to enter the adjustment process, this 
     gives adjusting workers no advantage over regular immigrants 
     beginning the legal immigration process at the same time.
       AgJOBS would not create an amnesty program. Neither would 
     it require anything unduly onerous of workers. Eligible 
     workers who are already in the United States could continue 
     to work in agriculture, but now could do so legally, and 
     prospectively earn adjustment to legal status. Adjusting 
     workers may also work in another industry, as long as the 
     agriculture work requirement is satisfied.

                    AgJOBS is a Win-Win-Win approach

       Workers would be better off than under the status quo. 
     Legal guest workers in the H-2A program need the assurance 
     that government red tape won't eliminate their jobs. For 
     workers not now in the H-2A program, every farmworker who 
     gains legal status finally will be able to assert legal 
     protection--which leads to higher wages, better working 
     conditions, and safer travel. Growers and workers would get a 
     stable, legal work force. Consumers would get better 
     assurance of a safe, stable, American-grown, food supply--not 
     an increased dependence on imported food. Law-abiding 
     Americans want to make sure the legal right to stay in our 
     country is earned, and that illegal behavior is not rewarded 
     now or encouraged in the future. Border and homeland security 
     would be improved by bringing workers out of the underground 
     economy and registering them with the AgJOBS adjustment 
     program. Overall, AgJOBS takes a balanced approach, and would 
     work to benefit everyone.

   Agricultural Job Opportunity, Benefits, and Security Act of 2005--
     Overview and Summary of Significant Provisions, February 2005


       The Agricultural Job Opportunity, Benefits, and Security 
     Act of 2005 is, in all substantive essentials, the same as S. 
     1645, which attracted 63 Senate cosponsors in the 108th 

title i--adjustment of agricultural workers to temporary and permanent 
                            resident status

       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 December 31, 2004 can apply for adjustment 
     of status. Eligible applicants would be granted temporary 
     resident status. If the farmworker performs at least 360 work 
     days (no less than 2,060 hours) of agricultural employment 
     during the six-year period after the date of enactment, 
     including at least 240 work days (no less than 1,380 hours) 
     during the first three years following adjustment, and at 
     least 75 days (no less than 430 hours) of agricultural work 
     during each of three 12-month periods in the six 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 reenter 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 U.S., 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.

     titles ii and iii--reform of the h-2a temporary and seasonal 
                      agricultural worker program

       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 meet 
     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

[[Page S1712]]

     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 January 1, 2003 and if Congress fails 
     to enact a new wage rate within 3 years, the AEWR would be 
     indexed to changes in the consumer price index, capped at 4 
     percent per year, with increases applied beginning the first 
     March 1 following three years from the date of enactment. 
     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 
       The administration of the H-2A program is funded through a 
     user fee paid by agricultural employers.

           technical adjustments made in the 2005 agjobs bill

       Several technical adjustments have been made to update or 
     clarify provisions, relative to the predecessor bill 
     introduced in 2003 (S. 1645). They include the following:
       Relevant dates associated with H-2A and earned adjustment 
     provisions have been updated to reflect the passage of time 
     since the original bill's introduction. Affected provisions 
     remain substantively equivalent. The AEWR in 2009 and 
     thereafter would be the same as if the 2003 bill (S. 1645) 
     had been enacted in 2003.
       Time frames associated with the H-2A adverse effect wage 
     rate and study, and future work requirements under the earned 
     adjustment program, have been modified from ``hard dates'' to 
     fixed time periods after date of enactment to ensure that the 
     effect of the provisions remains constant regardless of 
     timing of enactment.
       Language regarding eligibility for adjustment or grounds 
     for removal for various acts has been added to clarify that 
     the spouse or minor children of an alien applying for or 
     working under temporary residency are held to the same strict 
     standards for lawful behavior, and are excludable or 
     deportable under the same standards that apply to the alien 
       New language clarifies that the bill does not limit the use 
     or release of information contained in files or records of 
     the Department of Homeland Security regarding criminal 
     convictions or other information for immigration enforcement 
     or law enforcement purposes.
       Clarifying language has been added to conform with the 
     Personal Responsibility and Work Opportunity (Welfare Reform) 
     Act of 1996, to ensure that adjusting AgJOBS workers have no 
     advantage over other, legal immigrants, with regard to the 
     timing and eligibility of means-tested public benefits.
       Technical clarifications have been made to carry out the 
     authors' original intent only to authorize appropriations, 
     not create or imply mandatory spending, to administer the