Washington, DC – U.S. Senator Dianne Feinstein (D-Calif.) today issued a statement in response to the Bush Administration’s announcement of more than two dozen steps it plans to take to tighten the borders, enforce immigration laws currently on the books, and improve some of the visa programs already in place. 

Senator Feinstein highlighted the ongoing need to pass legislation to address the agriculture worker shortages.  Earlier this year, Senators Feinstein and Larry Craig (R-ID) introduced legislation, known as AgJOBS, that would ensure a stable, reliable supply of agricultural workers. 

The following is Senator Feinstein’s statement:

“The Administration’s approach is a Band-Aid that will not stop the looming crisis American agriculture will face this fall.  The crisis is that crops will not be harvested. 

Our nation’s $260 billion agriculture industry depends largely on undocumented workers.  Today, it is estimated that at least 70 percent of the workers who plant, prune, and harvest American fruits and vegetables are undocumented.  Without them, American farmers will not be able to fully harvest their crops. 

We have found over the years that there simply are not enough Americans willing to do this work.  Today’s farm workers are highly skilled – they know how to harvest, how to pack, how to can.  To take this workforce away would collapse the industry. 

In fact, we’ve already started to see the effect of worker shortages across the country:

• In Michigan, farmers lost 20 percent of their asparagus crop earlier this year because they didn’t have enough workers;
  
• In Washington, raspberries have died on the vine because there was no one available to pick them;
  
• In Georgia, melon farmers report that their crops are in danger of spoiling because their labor is short;
  
• In Idaho, there was an 18 percent shortage of farmworkers last year and potato growers predict greater labor shortages for the current cycle; and
  
• In North Carolina, farmers lost nearly a third of their cucumber crop last year because of worker shortages. 

Thus far in California, more than 11,000 jobs have been transferred to Mexico and 46,000 acres of Mexican farmland have been taken over by California farmers.  The farmers simply cannot count on a farm labor crew to harvest their crops in the United States. 

The result of that transfer is a loss of market share, with Americans becoming more and more dependent on foreign food sources.  And the food products that come into the United States present phytosanitary and pesticide concerns, from a country where there is little control on either of these. 

Secondly, if China is able to get a foothold on the American apple market and we see the importation of cheap apples, the American apple market will be decimated.

There is not an administrative solution, and tinkering with regulations is not going to solve the problem. Therefore, we must pass a law that enables agricultural workers to continue working legally if they stay in agriculture for the next three to five years and meet other requirements.  This is what AgJOBS does.

In a couple of weeks, there is going to be catastrophe.  The new regulations regarding no-match letters may require employers to fire every employee with an ‘unmatched’ Social Security number within 90 days, or face civil and criminal penalties. 

Come September, farmers will find themselves without enough help just as the fall harvest begins.  That’s why it is absolutely critical that we create a stable and reliable supply of labor.  The price of inaction is too high.”

AgJOBS Bill Summary

Earned Adjustment Proposal for Agricultural Workers:

• Pilot program to allow certain undocumented agricultural workers to legalize their immigration status in the United States and to modify the current H-2A program.
  
• The first step requires that undocumented agricultural workers apply for a “blue card” if they can demonstrate that they have worked in American agriculture for at least 150 work days within the previous two years before 12/31/06.
  
• The second step requires that a “blue card” holder demonstrate that they have worked in American agriculture for an additional 150 work days per year for 3 years, or 100 work days per year for 5 years, then they will be eligible to apply for a green card.
  
• Employment will be verified through employer issued itemized statements, pay stubs, W-2 forms, employer letters, contracts or agreements, employer sponsored health care, time cards or payment of taxes.
  
• This program will be capped at 1.5 million blue cards in five years (without a per year cap) and sunset after five years.
  
• Individuals may participate in employment other than agriculture so long as the worker satisfies the 100 or 150 workdays each year, and if they don’t they will lose their status.
  
• Blue card holders (including spouses and children) will be allowed to travel in and out of the United States.
  
• Spouses of blue card workers will be eligible to apply for their own work permit and their employment will not be limited to agricultural employment.
  
• Aliens participating in the program will be required to pay a fine of $500, show that they are current on their taxes, and that they have not been convicted of any crime that involves bodily injury, the threat of serious bodily injury, or harm to property in excess of $500.
  
• The Department of Homeland Security will determine the adequate application fee necessary to offset the costs of this pilot program and ensure that blue cards are encrypted, have biometric identifiers and contain other anti-counterfeiting protections.
  
• To avoid backlogs, aliens who receive a green card under this program will be exempt from the overall numerical limitations on visas (i.e., 675,000 visas) and the country numerical limitations for Mexico, India, China and the Philippines.

H-2A Program Modifications:

• The labor certification process, which often takes 60 days or more, is replaced by an “attestation” process.  The employer can file a fax-back application form agreeing to abide by the requirements of the H-2A program.  Approval should occur in 48 to 72 hours.
  
• The interstate clearance order to determine whether there are U.S. workers who can qualify for the jobs is replaced by a requirement that the employer file a job notification with the local office of the State Employment Security Agency.  Advertising and positive recruitment must take place in the local labor market area.
  
• Agricultural associations can continue to file applications on behalf of members.
  
• The statutory prohibition against “adversely affecting” U.S. workers is eliminated.  The Adverse Effect Wage Rate is frozen for 3 years while it is studied, and thereafter indexed by a methodology that will lead to its gradual replacement with a fair wage standard.
  
• Employers may elect to provide a housing allowance in lieu of housing if the governor determines that there is adequate rental housing available in the area of employment.
  
• Inbound and return transportation and subsistence is required on the same basis as under the current program, except that trips of less than 100 miles are excluded, and workers whom an employer is not required to provide housing are excluded.
  
• The motor vehicle safety standards for U.S. workers are extended to H-2A workers.
  
• Petitions for admission of H-2A workers must be processed and the consulate or port of entry notified within 7 days of receipt.  Requirements are the same as current law.
  
• Petitions extending aliens’ stay or changing employers are valid upon filing.
  
• Employers may apply for the admission of new H-2A workers to replace those who abandoned their work or are terminated for cause and the Department of Homeland Security is required to remove H-2A aliens who abandoned their work.
  
• H-2A visas will be secure and counterfeit resistant.
  
• A new limited federal right of action is available to foreign workers to enforce the economic benefits required under the H2A program, and any benefits expressly offered by the employer in writing.  A statute of limitations of three years is imposed.
  
• Lawsuits in state court under state contract law alleging violations of the H-2A program requirements and obligations are expressly preempted.  Such state court lawsuits have been the venue of choice for litigation against H-2A employers in recent years.

###