Remarks by Homeland Security Secretary Michael Chertoff, Department of Labor Secretary Elaine L. Chao, and Department of Agriculture Deputy Secretary Chuck Conner at a Press Conference on Immigration

Release Date: February 6, 2008

Washington, D.C.

Secretary Chao: Good morning. Thank you all so much for being here today. We are here to announce a series of reforms to preserve the vibrancy of America’s agricultural sector, America’s farmers, by ensuring that American farmers have an orderly and timely flow of workers to harvest their crops.

I’m going to outline the Department of Labor’s proposal – I’m Secretary Chao. And I will be followed by Secretary Chertoff and then Deputy Secretary Conner. Deputy Secretary Conner may have to leave in a little while, but in time to give his statement.

And so let me just tell you a little bit about what’s happening at the Department of Labor. There are about 1.2 million hired agricultural workers in our country today, and estimates show that between 600,000 and 800,000 are undocumented workers. There simply are not enough U.S. workers to fill the hundreds of thousands of agricultural jobs that are available in this country.

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

Now, following the stalemate on the comprehensive immigration reform, the President asked for a review of this program because of the critical need for agricultural workers. And the Department found that the current H-2A regulations haven’t been updated in about 20 years.

Farmers report that the H-2A program is burdensome, it’s inefficient, it’s bureaucratic, and it’s just riddled with delays. And many farmers who have tried to use this program have had such bad experiences that they stopped using it altogether.

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

So today the Department of Labor is announcing proposed – and let me emphasize, it’s 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.

And the changes have four main goals. First, is to provide the steady and timely flow of legal workers that American agriculture needs to fill the hundreds of thousands of jobs of which there are no available American workers.

Second, to better protect the wages and the working conditions of U.S. workers by encouraging farmers to hire legal workers through the H-2A program, who have guaranteed – which have guaranteed wages and guaranteed legal rights.

Third – and this is very important – these proposed changes would bring the Labor Department into compliance with its legal obligations to process H-2A applications within the statutory time line set by Congress. Right now, the Department is required to file and to process H-2A applications within 15 days. But under the current regulations, this is almost never met.

And fourth, these proposed changes are to strengthen enforcement of workers’ rights by expanding advertising and recruitment of requirements for U.S. workers, and increasing the penalties for employers who violate program requirements.

Let me give you a snapshot as to 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 a H-2A visa. Before the U.S. Citizenship and Immigration Service in Secretary Chertoff’s department can approve an employer’s petition to admit foreign workers, employers have to receive what’s called a "labor certification" from the Department of Labor. And the Department of Labor certifies that: one, there aren’t enough American workers who are willing, able, qualified, and available to do the work; and two, that the foreign workers will not adversely affect the working conditions and the wages of American workers.

So during a review of the current regulations, the Department identified a number of practices not required by statute that have contributed to making this program very difficult to use. For example, the current program requires employers to navigate a maze, literally a maze, of four different states and federal agencies. Jumping through all these hoops is expensive, time-consuming, and most of all, ineffective. And at times, the process is so paralyzed by delays that farmers do not receive the workers that they need in time to harvest their crops. And last year in Colorado, for example, the state was forced to use prison labor to ensure that crops would be harvested in time.

So the new reforms announced today address many of the complaints about this program. We hope that it will improve the application process, and increase protections for both American and foreign workers. And we seek the public’s input.

Specifically, the new regulations will, one, eliminate duplicative processes by requiring employers to file H-2A visas applications directly with the Department of Labor, rather than going through the state workforce agencies. And secondly, we’re proposing to 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.

Third, we propose to improve the processing times for applications by requiring employers to attest, under threat of substantial penalty, that they have complied with all the requirements. And fourth, we propose to revise the methodology for calculating the wages required to be paid under the H-2A program, to better reflect agricultural wages by locality, occupation and skill level.

And fifth, we propose to enhance the Department’s ability to conduct audits of H-2A certifications, and authorize a revocation of approved certifications and debarment of employers who fail to comply. These proposed reforms will also substantially increase civil money penalties for program violations. And finally, these proposed regulations will revise H-2A application fees so that they better reflect the actual fees of administering this program.

Now, separately the Department is also 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.

I don’t have to tell you H-2A is a complicated program with a long history. The Department recognizes that proposing changes to policies and practices that have been around for a long time may be controversial. But unless changes are made to more accurately reflect today’s economy, the labor challenges confronting U.S. agriculture would just continue to get worse.

So at this point let me turn the podium over to Secretary Chertoff, and let him tell you about some of the proposed reforms at the Department of Homeland Security. Thank you.

Secretary Chertoff: Thank you, Secretary Chao. Before I begin, let me just observe that, as you know, yesterday, communities from Texas to Tennessee were impacted by tornados – and I think we’ve had about 45 people who have lost their lives. So I know our thoughts and prayers are with all those communities. The storms are continuing; I believe Kentucky, actually, is still in the danger zone. So please, everybody, listen to the instructions of your local authorities.

FEMA is working with state and local counterparts, monitoring the storms and preparing to move in to assist with respect to the process of responding and recovering as quickly as possible. The Regional Response Coordination Center Watch Unit in Thomasville, Georgia, is up and running and we’ve got state liaisons in Tennessee, Mississippi, Kentucky, and on its way to Arkansas. We’ve already deployed a team of FEMA people on the ground in Tennessee.

So we’re going to keep watching this. Again, I want to emphasize it’s important for people to pay attention to the direction they get from their local officials regarding evacuation and safety.

Turning to the subject at hand, I’m delighted to be here with Secretary Chao and Deputy Secretary Conner this morning to talk about these changes to the H-2A program which are designed to make this much more accessible, and therefore much more useable, by the agricultural sector.

I think you’ll remember last year, in the wake of Congress’s failure to pass comprehensive immigration reform, there were accurate predictions of the fact that if we simply move forward on the basis of enforcement, there was going to be an impact on the agricultural sector of the economy. There are estimates, as Secretary Chao said, that as many as 600,000 to 700,000 agricultural employees are illegal or undocumented. And as we have ratcheted up enforcement at the border and at the interior, we have increasingly heard complaints and cries for help from the agricultural sector – discussion of crops that are rotting in the fields or rotting on the vines, and pleas for help.

Now, one plea that we do not listen to is the plea to relax enforcement so people can go back to hiring undocumented workers; that’s one thing we’re not going to do. But what we do need to do is to find a way to make the path for hiring legal temporary workers somewhat more user-friendly and somewhat more rational. And if we’re able to do that, we will be able to allow the agricultural sector to continue to do what they’ve done for so long, which is to provide safe fruits and vegetables for American tables all across the country.

Bottom line is when you look at the issue of immigration, we’re still confronted with the need to balance two very essential elements. On the one hand, national security and law enforcement and the rule of law require that we continue to turn the screws on illegal immigration – and we’re going to continue to do that, come what may. But at the same time, business, agriculture and the well-being of all of our citizens demands that we find a way to satisfy labor needs that are not otherwise being satisfied through a path that is legal, that protects the workers and protects the employers, and that is efficient so that people in fact want to use it.

That’s why I’m delighted to join the Departments of Labor and Agriculture to announce modifications that will take the H-2A program and actually make it a program that people want to participate in, as opposed to a program that exists on paper but that is so bureaucratic and so cumbersome that nobody actually really is particularly enthusiastic about using it to recruit lawful, temporary workers.

This is, by the way, going to be a win-win for everybody involved: It’s good for the employers, it’s good for the consumers because it means we’re going to have fruits and vegetables, but it’s also good for people who want to do temporary work overseas.

Right now with the existing program – which is so unfriendly that, frankly, most people choose not to use it – in that circumstance, workers overseas have two choices: either they have no opportunity to work in the United States, so they have no opportunity to better their standard of living; or, because most employers aren’t using H-2A, they have to sneak in, put their lives at risk, break the law, and work in sometimes substandard conditions with no protection, because the fact is that they’re undocumented.

By creating a legal path where these people will be registered and visible, workers from overseas who want to do this work will actually have an opportunity to better themselves without being exploited, and in a way that does honor the rule of law and the regulations in this country.

We’ve done some things already. Last October, the United States Citizenship and Immigration Services centralized the filing process for H-2A petitions and established a special unit at the California Service Center dedicated to the H-2A program. We’re now working to have email notifications of H-2A approvals to employers to speed the process. And we’re holding annual public meetings with employers to get feedback so we can continue to refine the system.

But what we’re proposing today in addition to that are a series of modifications to further streamline this program without sacrificing its security and reliability. First, we want to relax some of the current bureaucratic limitations and burdensome restrictions on American businesses who want to use this lawful program to get temporary agricultural labor. Under our proposed rule, an employer will only have to identify an H-2A worker by name in its petition if the worker is already in the United States. It’s unreasonable to expect that when you’re recruiting from overseas that the agricultural employer is going to know the names of everybody it hires before the process is underway.

Now, I want to emphasize: Before any foreigners actually set foot in the United States, they will still have to go through a visa process, they will still have to go through a security process. So we’re not going to be letting people in without vetting them, but we’re going to try to compress the time frame for the processing by allowing the names to be entered at a later point in the process.

We also want to have a little more flexibility with respect to time limits on how long workers who have been approved can remain in the country and how long they have to stay out of the country before they’re eligible to reapply. We’re proposing to extend the amount of time a worker can remain in the U.S. after the end of a term of employment from 10 days to 30 days. This will allow H-2A workers to extend their stay through a job with a new agricultural employer. That’s going to make it more attractive to the foreign worker to use the legal method, as opposed to the illegal method, and it’s going to make it easier for the employers to compress the processing time.

We also want to shorten the time period that a worker has to wait outside the country before they’re eligible to reapply. It’s currently a six-month wait. We want to cut that in half to three months. Again, this is going to make it more efficient for the employers, but it’s also going to create a more appealing legal path for the foreign worker than we currently have. The idea is to create incentives to abide by the law, and disincentives to violate the law. And this is part of this general enforcement process we have underway.

We’re also proposing that H-2A workers who change employers be allowed to begin work with a new employer once the application is filed and is pending approval – but only if the new employer participates in the E-Verify online verification program. Again, this is going to allow quick and flexible movement from job to job, which is a part of the pattern of employment in this area, without clogging up the movement of workers and the flexibility of the process by requiring everybody to stand down and wait while we grind through the bureaucratic process.

But we’re still insisting on robust protections for foreign workers. Our proposal requires an employer to certify, under penalty of perjury, that it will not materially change the scope of the foreign workers’ duties and place of employment; in other words, no bait and switch once we give an approval. And this is going to protect people against changing the conditions so that it doesn’t reflect what was actually approved. An employer is going to have to identify a new labor recruiter used to locate foreign workers. That’s going to help us crackdown on those who exploit and misrepresent to people who are overseas seeking work.

And it is important that employers and labor recruiters will be prohibited from imposing fees on foreign workers as a condition for H-2A sponsorship, and will have to certify that they haven’t done it. In other words, no kickbacks can be demanded as a price of sponsoring people for H-2A. Again, this is worker protection. This is actually better than the protection we have in place now.

And finally, we’re going to make some additional changes to further reinforce what we’re doing on the enforcement side. We’re prohibiting the approval of H-2A petitions from nationals of any country that refuses or unreasonably delays repatriating their citizens when they are caught in this country illegally. If a country wants to benefit from having its citizens be able to work legally on a temporary basis in this country, then they’ve got to cooperate with us and take back their illegals when we catch them. Most countries do this, and particularly I have to say the countries in Central America and South America are very good about this, but there are some countries in the world that are not very good about it.

Second, we’re requiring employers to notify us within 48 hours if an H-2A employee is fired or absconds. And finally we’re going to begin a pilot program to record biometrically the departure of certain H-2A workers who leave by land. This is going to help us keep track of whether people overstay or not.

This is the next piece in the strategy that we’ve undertaken to do the very best we can to get control of our borders, and to do it in a way that promotes rather than compromises our national economy, and particularly our agricultural sector.

This is going to – still continue to take work, but we have made progress. One of the unfortunate metrics of that progress is the amount of complaining we’ve heard from the agricultural sector, and I think this is going to go some distance in remedying those complaints. So with that I’ll turn it over to Deputy Secretary Conner.

Deputy Secretary Conner: Thank you, Secretary Chertoff, and good morning, everyone. It is a pleasure for me to be here today. Ladies and gentlemen, this really is an important day for American agriculture, and I do want to particularly thank Elaine Chao and Mike Chertoff and all of the folks on their staff for the very hard work that they have put in to the effort to get us where we are today.

The changes we are proposing today will go, I believe, a long way toward ensuring that America’s farmers will have a stable, a legal workforce that they can simply be there to count on at harvest time. I’d like to say that American farmers are straight-up people. They do value honesty. They’re square-dealing. Simply put, they want to be on the right side of the law.

But for too long, our farm labor system has operated mostly outside of the law. With all of the risk that that carries for farmers, as well as the workers alike involved, our system for bringing seasonal agricultural workers into the country legally simply has not been able to meet the needs of our farmers, to get them the help they need when they need it.

Because farmers are tied to the land and the natural cycles of growth and harvest, their need for labor is urgent and it is nonnegotiable. This is particularly true for the fruit and vegetable growers of our country who employ so many of our farm workers. A crop that rots in the field for want of enough hands to pick it can put a farmer out of business almost immediately.

Unfortunately, those farmers who do participate in the current H-2A program and meet all of its requirements still run the risk that, because of bureaucratic delays beyond their control, they won’t be able to have the legal workforce in place when they need it.

Individual decisions made by farmers all across the country have been reflected in the very low level of participation in the current H-2A program relative to the total size of our agricultural workforce. As has been noted, we estimate that our agricultural workforce numbers are about 1.2 million at its seasonal peak. For the last year, agricultural employees hired only about 75,000 farm workers through our current H-2A program. And we believe that between 50 to 70 percent of our agricultural workforce in this country is here illegally, and that translates to between 600,000 to 800,000 people.

At the upper end of that range, the current H-2A program is legalizing fewer than 10 percent of our eligible workers – 10 percent. That is simply not an acceptable number. There was a bump-up in applications last year for the program. We believe that does reflect the tighter border enforcement by Secretary Chertoff’s department, and the impact of other enforcement actions that have been taken over the last year.

The program revisions we are announcing today, however, should take us much further down the road to having an adequate supply of legal and reliable foreign workers to meet our agricultural needs. The changes will streamline and simplify the program, yet they will also provide new protections to U.S. workers by assuring them wider opportunities to learn about farm labor jobs that may be available to them in their area.

Farmers have often complained that the adverse effect of wage rate forces them to pay more than the actual prevailing wage in their area for the workers they need. By utilizing the Department of Labor’s Occupations Employment Survey data, we will get more graduated and finely tuned wage data. The data will be linked to specific job categories and descriptions, and we believe should all us to bring H-2A wage rates much closer to the actual local prevailing wage rates.

I also believe farmers will welcome the new attestation approach to certifying their need for foreign workers. It puts the responsibility on them to go through the necessary steps of advertising jobs they have available, and then certifying that they have not been able to find suitable U.S. workers to fill those jobs.

We are placing a measure of extra trust in our farmers. I believe that extra trust is justified and warranted. It is not blind trust. We don’t want them to be tempted to take advantage of the system, so we are also requiring them to keep records on-hand for five years to prove that they did in fact comply with the requirements of the law. And we’re making this subject to audits to confirm that they have been in fact doing the right thing.

What we are offering them is an opportunity to get back to hiring inside the rules of the law without compromising their own business needs. And we are offering farm workers who are now illegal the chance to get inside the law, as well, and take advantage of the protections and the opportunities that exist through that.

I believe both groups have a great deal to gain here and will seize upon this opportunity. Of course, the nation as a whole is going to benefit from this, as well. So we look forward to continuing to work with these two great agencies in developing this, looking forward to working with each one of you, and thank you all for having us here today.

Question: Secretary Chao, what is the average time now for a farmer, for an agricultural enterprise solicit these workers and get it? And how much time will it be reduced by the new processes?

Secretary Chao: The application, by law, are supposed to be processed within 15 days – and they are not. So as law-abiding citizens we are very concerned about that. We hope that through these new changes, that that indeed will occur. So it’s within about 15 days. That does not mean – of course, we’re lengthening the recruitment and advertising period to about 90 days beforehand. But from a time that a farmer applies for the program, they should get an answer within 15 days.

Question: From here, these proposed rules, what is the process from here on out to actually get them to go into effect? When would you expect them to go into effect, and given that there’s less than a year in the Bush administration, are they going to take effect?

Secretary Chao: First of all, the question about process is an excellent one because I want people to understand we have issued what is called – we are issuing today what is called a "notice of proposed rule-making." And this is part of the regulatory process that the federal government goes through to put in place changes.

There is a time and a period in which the public and interested groups will be able to comment, and so there will be a 60-day* comment period that will start from the time that the notice of proposed rule-making is made public. And people can respond, they can object, they can agree.

I think what’s most important is that we hear from people who are concerned about this problem. We seek their input. We also seek their advice to make these regulations, again, more effective and more timely and also more protective of all workers who work in the United States.

Question: And after that?

Secretary Chao: After that, we take those comments and we will evaluate them, then we have to give it to the Office of Management and Budget, and they’ll take some time to review the regulations, the proposed changes to the draft that we have now, and they’ll probably come out, we expect, maybe July-August of this year.

Question: Are you all looking at reforming the other temporary work visa programs?

Secretary Chao: Well, the President, last August, in the aftermath of the stalemate that surrounded the immigration reform package – the President did ask all the departments who had relevant portions of programs in the immigration debate to review these programs to see whether something can be done to address some of the delays, the inefficiencies, the ineffectiveness of some of these programs. We have two, and so we’re looking at both. Secretary Chertoff has other responsibility –

Question: (Inaudible) regulations on those?

Secretary Chertoff: On some of the other – I mean, some of the other programs present problems –

Secretary Chao: Secretary Chertoff has his programs, so he’s going to talk about his.

Secretary Chertoff: – are statutory problems. We have to get – you know, for example, there’s a cap on H-2B, there’s some other statutory limitations. We are looking at in our domain some additional possible regulatory changes. But to get truly profound reform on some of these programs – which I think there is considerable pressure to do – it’s going to take Congress to step up to the plate.

Secretary Chao: It would be interesting to note here, H-2A visa program is the only one that is uncapped, and yet it’s under-utilized.

Question: With the participation so low today, realistically, if your rules go through, how much do you expect to impact this large number of illegal immigrants that currently don’t participate in the program?

Secretary Chao: Well, we hope there will be a significant impact. As border enforcement continues and border security, homeland security, is a very important part of the government’s responsibility, which lies in Secretary Chertoff’s department, we do expect that – I think Americans expect us, American citizens expect us to do our job in enforcing border security. That will have an impact on workers coming into the United States.

And so we hope that by publicizing this program and making it easier to access, that more people will use this uncapped H-2A Visa Program. I think most people want to obey the law. Most people –

Question: (Inaudible).

Secretary Chao:Sorry?

Question: With the amount of time that’s left in the administration, will you know that?

Secretary Chao: The regulations will probably come out around July-August, as I mentioned, and they will probably be ready for the next season. Again, this is a program that benefits everyone, as Secretary Chertoff has said. You know, workers who are coming into our country illegally are not protected; their wages are not guaranteed. And so we need to ensure that all workers within the United States are paid appropriately and that they are protected in terms of workplace safety and health. That is a right that every worker in America should have.

Question: Secretary Chertoff, I’m wondering about the trial for the land border exit system and what the implications are for US-VISIT?

Secretary Chertoff: Well, we’re moving forward with US-VISIT exit in two ways. First of all, we want to have US-VISIT air at the airports up and running this year. We’re going to have to do – complete and publish a regulation to make that happen. We think it’s doable. As usual, when we try to impose a security requirement, there will be a certain amount of squawking. But I think the clear necessity to know who is leaving the country is beyond debate at this point.

The land border has always been a little more challenging because there’s the volume of traffic. But the reason we’re going to start with this pilot is because the people who come in with these special visas have a particular incentive to comply with the rules by checking out. So we’re going to try to figure out how within the current architecture of the ports of entry and exit we can locate the equipment, which is not very large, and then we’re going to begin the process of requiring people who come in with these visas to check out biometrically, just as they will be checking in.

Question: I wanted to kind of follow up on this question, that – it seems like – what I was told by – I was told that about 2 percent of the ag employers use this program. So how much, realistically, could it grow with the constraints on consul offices for visas? And as a follow-up to your statement on protecting workers, there was mention of town halls for employers, but I didn’t hear any mention of town halls for people who are advocates for –

Secretary Chao: Oh, there have been.

Question: How many have there been?

Secretary Chao: I don’t have the exact number, but there have been extensive meetings with all interested groups, advocate groups, advocacy groups, on both sides. And again, we are going through a notice of proposed rulemaking, in which we’re soliciting public comment for the next 60 days*. And so that’s what this regulatory process is all about: a proposal is set forward, and then we ask for public comment, and then we evaluate the comments.

What was the second – the first question?

Question: How much can this realistically grow with the limits on –

Secretary Chao: I think one of the greatest deterrents to farmers using this program to bring in workers legally is because it’s so fraught with bureaucratic hurdles and delays and inefficiencies. Right now, for example, a farmer, agriculture employer, a farmer, has to apply in a duplicative basis at the state and the federal level. There’s no reason for that. So we are now requiring that applications be processed and submitted to the Department of Labor. And that’s going to expedite things a lot.

We are also going to require that inspections be held within a certain amount of time. So there’s a lot of other changes that will, again, expedite but also provide greater protection for workers during the process. We are also, for example, increasing the penalties. There’s an attestation period – process. We’re also increasing penalties, we’re increasing the number of audits that will be conducted.

So this is a very comprehensive program that really seeks to make more efficient this legal program to bring in legal workers, and how do we make this program more accessible to those who want to use it.

Question: But how many visas really can be made available in a year’s time before –

Secretary Chao: Well, it’s unlimited.

Question: I realize it’s unlimited, but with the limits in the consular offices, which Secretary Chertoff’s department oversees, really, is there – are there resources there in the consul offices –

Secretary Chao: Well, we have – the fee application will help. One of our proposals is to increase the application fee, and use those increased application fees to provide for the additional resources that will be needed.

Question: Can you speak – can you go again on the pilot program? How is that going to facilitate the entrance and exit of workers?

Secretary Chertoff: Well, right now, if you come through our land ports of entry, we have at all of these ports of entry – and we’ll – at the airports, as well – a fingerprint capture system, US-VISIT. It takes about 10 seconds, and then we record your fingerprints. The concept is, when you leave, you will check out by giving your fingerprints to show you’ve checked out. This is a record for us that you have left once your visa is expired. It’s also, by the way, good protection for the worker because it verifies that the worker has complied with the rule.

The only limiting factor has been that some of the physical layout of the ports of entry has never been configured for this, so we’re going to start in a couple of ports of entry, or ports of exit, at the land border, plus obviously anybody leaving by air, and build out a space where people can check out using this fingerprint process. And then as we see how that works, we’ll move that process along more ports of entry.

* Correction: The comment period will last 45 days.

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This page was last reviewed/modified on February 6, 2008.