Remarks Prepared for Delivery by U.S. Secretary of Labor Elaine L. Chao For H2-A Rollout Press Conference

February 6, 2008

We are here today to announce a series of reforms to preserve the vibrancy of American agriculture by ensuring that America’s farmers have an orderly and timely flow of legal workers to harvest their crops.

I’ll outline the Labor Department’s piece of this proposal, followed by Secretary Chertoff and then Deputy Secretary Connor.

There are 1.2 million hired agricultural workers in the United States today. Estimates show that between 600,000 and 800,000 are undocumented. There simply aren’t enough U.S. workers to fill the hundreds of thousands of agricultural job openings in this country.

Farmers can hire temporary foreign workers to harvest their crops through the H-2A visa program, which was established by Congress in 1986 and is administered by the U.S. Department of Labor. Yet despite the fact that this program is uncapped, agricultural employers hired only about 75,000 H-2A workers in 2007.

Following the stalemate on comprehensive immigration reform, the president asked for a review of this program because of the critical need for agricultural workers. The Department found that the current H-2A regulations hadn’t been updated in more than 20 years.

Farmers report that the H2A program is burdensome, duplicative and riddled with delays. And many who have tried it report such bad experiences that they stopped using it altogether.

This issue must be addressed now, or our country will see eroding competitiveness in its agricultural sector, crops being left to rot in the fields, and increasing shifting of domestic food production to overseas.

So today the Department of Labor is announcing proposed changes to the H-2A program that will provide farmers with an orderly and timely flow of legal workers, while protecting the rights of all agricultural workers.

The proposed changes have four main goals:

1. First, to provide the steady and timely flow of legal workers American agriculture needs to fill the hundreds of thousands of agricultural jobs for which no U.S. worker can be found;
2. Second, to better protect the wages and working conditions of U.S. workers by encouraging farmers to hire legal workers through the H-2A program who have guaranteed wages and guaranteed legal rights;
3. Third, to bring the Labor Department into compliance with its legal obligation to process H-2A applications within the statutory timeframes set by Congress. The Department is required to process H-2A applications within 15 days, but under the current regulations this is almost never met.
4. And fourth, to strengthen enforcement of workers’ rights by expanding advertising and recruitment requirements for U.S. workers and increasing the penalties for employers who violate program requirements.

Let me give you a snapshot of how the H-2A program works. Employers who cannot find U.S. workers can bring in foreign workers on a temporary basis by applying for an H-2A visa. Before U.S. Citizenship and Immigration Services (USCIS) can approve an employer’s petition to admit foreign workers, however, employers must first receive a “labor certification” from the Department of Labor.

The Department of Labor certifies that:

1. There aren’t enough U.S. workers who are able, willing, qualified and available to do the work; and,
2. The foreign workers will not adversely affect the wages and working conditions of U.S. workers.

During review of the current regulations, the Department identified a number of practices not required by statute that have contributed to making the program difficult to use.

For example, the current program requires employers to navigate a maze of four different state and federal agencies. Jumping through all these hoops is expensive, time consuming and ineffective. And at times the process is so plagued by delays that farmers do not receive workers in time to harvest their crops. Last year in Colorado, for example, the state was forced to use prison labor to ensure that crops could be harvested in time.

The new reforms announced today address many of the complaints about the program, improve the application process, and increase protections for both U.S. and foreign workers.

Specifically, the new regulations will:

1. Eliminate duplicative processes by requiring employers to file H-2A applications directly with the Department, rather than going through State Workforce Agencies;
2. Increase advertising and recruitment requirements to provide U.S. workers with additional information about job opportunities and more lead time to apply for these jobs before temporary foreign workers can be hired;
3. Improve the processing times for applications by requiring employers to attest under threat of substantial penalty that they have complied with all requirements,
4. Revise the methodology for calculating the wages required to be paid to H-2A workers to better reflect agricultural wages by locality, occupation and skill level.
5. Enhance the Department’s ability to conduct audits of H-2A certifications, and authorize the revocation of approved certifications and debarment of employers who fail to comply.
6. Substantially increase civil money penalties for program violations; and finally,
7. Raise H-2A application fees so they better reflect the actual costs of administering the program. Separately, the Department is proposing an important statutory fix that would allow the fees to be used by the Department to improve program administration and enforcement rather than sending the fees to the general Treasury.

H-2A is a complex program with a long history. The Department recognizes that proposing changes to policies and practices that have been around for decades may be seen as controversial by some. But unless changes are made to more accurately reflect today’s economy, the labor challenges confronting U.S. agriculture will just continue to get worse.

So now, let me turn the podium over to Secretary Chertoff, who will describe the role of U.S. Citizenship and Immigration Services in this process. Then, Deputy Secretary Connor will say a few words. And then, we will be happy to take questions.
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