House Hearing, 113TH Congress - Examining The Role of Lower-Skilled Guest Worker Programs in Today's Economy

EXAMINING THE ROLE OF LOWERSKILLED GUEST
WORKER PROGRAMS IN TODAYS ECONOMY
HEARING
BEFORE THE
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. HOUSE
OF
REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS

FIRST SESSION
HEARING HELD IN WASHINGTON, DC, MARCH 14, 2013
Serial No. 11310

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COMMITTEE ON EDUCATION AND THE WORKFORCE

JOHN KLINE, Minnesota, Chairman
Thomas E. Petri, Wisconsin
Howard P. Buck McKeon, California
Joe Wilson, South Carolina
Virginia Foxx, North Carolina
Tom Price, Georgia
Kenny Marchant, Texas
Duncan Hunter, California
David P. Roe, Tennessee
Glenn Thompson, Pennsylvania
Tim Walberg, Michigan
Matt Salmon, Arizona
Brett Guthrie, Kentucky
Scott DesJarlais, Tennessee
Todd Rokita, Indiana
Larry Bucshon, Indiana
Trey Gowdy, South Carolina
Lou Barletta, Pennsylvania
Martha Roby, Alabama
Joseph J. Heck, Nevada
Susan W. Brooks, Indiana
Richard Hudson, North Carolina
Luke Messer, Indiana
George Miller, California,

Senior Democratic Member
Robert E. Andrews, New Jersey
Robert C. Bobby Scott, Virginia
Ruben Hinojosa, Texas
Carolyn McCarthy, New York
John F. Tierney, Massachusetts
Rush Holt, New Jersey
Susan A. Davis, California
Raul M. Grijalva, Arizona
Timothy H. Bishop, New York
David Loebsack, Iowa
Joe Courtney, Connecticut
Marcia L. Fudge, Ohio
Jared Polis, Colorado
Gregorio Kilili Camacho Sablan,
Northern Mariana Islands
John A. Yarmuth, Kentucky
Frederica S. Wilson, Florida
Suzanne Bonamici, Oregon
[Vacant], Staff Director

Jody Calemine, Minority Staff Director
SUBCOMMITTEE ON WORKFORCE PROTECTIONS

TIM WALBERG, Michigan, Chairman
John Kline, Minnesota
Tom Price, Georgia
Duncan Hunter, California
Scott DesJarlais, Tennessee
Todd Rokita, Indiana
Larry Bucshon, Indiana
Richard Hudson, North Carolina
Joe Courtney, Connecticut,

Ranking Member
Robert E. Andrews, New Jersey
Timothy H. Bishop, New York
Marcia L. Fudge, Ohio
Gregorio Kilili Camacho Sablan,
Northern Mariana Islands
(II)
C O N T E N T S
Page
Hearing held on March 14, 2013 ............................................................................

Statement of Members:
Courtney, Hon. Joe, ranking member, Subcommittee on Workforce Protections ................................................................................................................
Prepared statement of ...............................................................................
Walberg, Hon. Tim, Chairman, Subcommittee on Workforce Protections ...
Statement of Witnesses:
Bauer, Mary, Southern Poverty Law Center .................................................
Benjamin, Fred, chief operating officer, Medicalodges, Inc. .........................
Musser, R. Daniel III, president, Grand Hotel, Mackinac Island, MI .........
Reiff, Laura, principal shareholder, Greenberg Traurig; chair, Business
Immigration and Compliance Group on behalf of the Essential Worker
Immigration Coalition ..................................................................................
Additional Submissions:
Andrews, Hon. Robert E., a Representative in Congress from the State
of New Jersey:
Letter, dated March 18, 2013, from the National Association of Home
Builders (NAHB) ....................................................................................
Bonamici, Hon. Suzanne, a Representative in Congress from the State
of Oregon:
Report, Program Design Issues Hampered ETAs Ability to Ensure
the H-2B Visa Program Provided Adequate Protections for U.S.
Forestry Workers in Oregon, dated Oct. 17, 2011, Internet address
to .............................................................................................................
Hudson, Hon. Richard, a Representative in Congress from the State
of North Carolina, questions submitted for the record ..............................
Ms. Reiff, response to questions submitted for the record ............................
Chairman Walberg:
Letter, dated March 13, 2013, from Associated Builders and Contractors, et al ................................................................................................
Statement of the American Horse Council (AHC) ..................................
Letter, dated March 13, 2013, from the Center for Global Development ........................................................................................................
Letter, dated March 14, 2013, from the Progressive Solutions LLC ....
Statement of the H2B Workforce Coalition ...........................................
Statement of ImmigrationWorks USA .....................................................
Joint statement of the Professional Landcare Network (PLANET)
and the American Nursery and Landscape Association (ANLA) .......
Report, Migrant Spray Industry Report, October 2012 .......................
Statement of the American Hotel & Lodging Association .....................
Letter [via email], dated March 13, 2013, from the National Hispanic
Landscape Alliance (NHLA) .................................................................
Statement of Keesen Landscape Management, Inc. ...............................
(III)
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EXAMINING THE ROLE OF

LOWERSKILLED GUEST WORKER
PROGRAMS IN TODAYS ECONOMY
Thursday, March 14, 2013
U.S. House of Representatives
Subcommittee on Workforce Protections
Committee on Education and the Workforce
Washington, DC
The subcommittee met, pursuant to call, at 10:03 a.m., in room

2175, Rayburn House Office Building, Hon. Tim Walberg [chairman of the subcommittee] presiding.
Present: Representatives Walberg, Kline, DesJarlais, Rokita,
Courtney, Andrews, Bishop, Sablan, and Bonamici.
Staff present: Owen Caine, Legislative Assistant; Ed Gilroy, Director of Workforce Policy; Benjamin Hoog, Legislative Assistant;
Nancy Locke, Chief Clerk/Assistant to the General Counsel; Donald
McIntosh, Professional Staff Member; Brian Newell, Deputy Communications Director; Krisann Pearce, General Counsel; Nicole
Sizemore, Deputy Press Secretary; Alex Sollberger, Communications Director; Alissa Strawcutter, Deputy Clerk; Loren Sweatt,
Senior Policy Advisor; Mary Alfred, Minority Fellow, Labor;
Tylease Alli, Minority Clerk/Intern and Fellow Coordinator; John
DElia, Minority Labor Policy Associate; Brian Levin, Minority Deputy Press Secretary/New Media Coordinator; Celine McNicholas,
Minority Senior Labor Counsel; Richard Miller, Minority Senior
Labor Policy Advisor; Megan OReilly, Minority General Counsel;
and Michele Varnhagen, Minority Chief Policy Advisor/Labor Policy
Director.
Chairman WALBERG. Well, good morning. A quorum being
present, the subcommittee will come to order. Other committee
members will be arriving, but it is time to begin so we might as
well begin.
I would like to welcome our members and thank our witnesses
for being here this morning.
Legal immigration is a hallmark of this great country, my family
included. Families and individuals from around the world have
come to our shores in pursuit of freedom and opportunity.
President Reagan often referred to our nation as a shining city
on a hill. For those who have followed its light we have tried to
provide a legal framework for entering and residing inside the
United States.
(1)
2
Such a framework is critical to protecting our national interests
and security. However, our immigration system is no longer as
strong and effective as it should be and reform is complex and controversial, to say the least.
The Education and the Workforce Committee has long played an
important role in that debate overseeing policies such as employment verification and temporary guest work programs. The current
debate is even more complicated due to the ongoing jobs crisis
plaguing our nation: 12 million Americans are searching for work.
In my home state of Michigan nearly 9 percent of the states
working population is without a job. It is an improvement from
where we were a few short years ago, but we still have a long way
to go before families and small businesses fully recover from a recession.
To help our economy move forward we must ensure, first of all,
all American workers have the tools they need to compete for goodpaying jobs here at home. I am pleased the House will consider this
afternoon comprehensive job training reform legislation which will
help workers and job-seekers access to the skills and education
they need to get back to work.
Additionally, we must do all that is reasonably possible to ensure
employers are searching far and wide for American workers. Guest
worker programs include a number of provisions intended to protect domestic workers. We can debate whether those policies go too
far or not far enough, but it is imperative we continue to support
our fellow citizens struggling to find work.
We do realize, however, there are times when the supply of domestic labor falls short of demand. For a variety of reasons and despite their best efforts, some employers simply cannot hire the
workforce necessary to run their businesses. Guest workers help fill
that void.
The Immigration Nationality Act currently includes several guest
worker visa programs, such as the H-1B program for highly skilled
workers and the H-2B program for temporary non-agricultural
workers. The law allows foreign workers to be admitted for a specific period of time and purpose. Under the H-2B program specifically, guest workers can enter the United States for up to 10
months and their stay can be extended up to 3 consecutive years.
An employer petitioning for guest workers must certify that domestic workers are unavailable as well as demonstrate the hiring
of foreign workers will not harm the wages and employment of
Americans.
We will examine today whether these programs serve the best interests of workers and employers. No doubt, that is a large undertaking for one hearing and involves a number of important questions.
For example, do limits on the number of visas issued each year
undermine the success of these programs? Will regulatory proposals put forward by the administration make it easier or more
difficult for employers to obtain foreign labor?
Do we have the right tools in place to ensure protections for
American workers are adequately enforced? Do the current temporary visa programs meet the long-term needs of employers seeking lower-skilled workers?
3
It is difficult for any federal program or law to keep pace with
our dynamic economy. Shifting demographics can alter the landscape of Americas workplaces. New industries and technologies
constantly change how businesses provide goods and services to
consumers.
While such developments often improve our lives, they also raise
difficult questions that need to be addressed by policymakers. I
hope our hearing today will inform the debate that is taking place
nationwide.
Again, I would like to thank our witnesses for joining us.
And I will now recognize my distinguished colleague, Joe Courtney, the senior Democratic member of the subcommittee, for his
openingremarks.
[The statement of Chairman Walberg follows:]
Prepared Statement of Hon. Tim Walberg, Chairman,
Good morning. Id like to welcome our members and thank our witnesses for being
with us today.
Legal immigration is a hallmark of this great country. Families and individuals
from around the world have come to our shores in pursuit of freedom and opportunity. President Reagan often referred to our nation as a shining city upon a hill.
For those who have followed its light, we have tried to provide a legal framework
for entering and residing inside the United States. Such a framework is critical to
protecting our national interests and security.
However, our immigration system is no longer as strong and effective as it should
be, and reform is complex and controversial. The Education and the Workforce Committee has long played an important role in that debate, overseeing policies such
as employment verification and temporary guest worker programs.
The current debate is even more complicated due to the ongoing jobs crisis plaguing the nation. Twelve million Americans are searching for work. In my home state
of Michigan, nearly 9 percent of the states working population is without a job. It
is an improvement from where we were a few short years ago, but we still have
a long way to go before families and small businesses fully recover from the recession.
To help our economy move forward, we must first ensure all American workers
have the tools they need to compete for good paying jobs here at home. I am pleased
the House will consider this afternoon comprehensive job training reform legislation,
which will help workers and job seekers access to the skills and education they need
to get back to work.
Additionally, we must do all that is reasonably possible to ensure employers are
searching far and wide for American workers. Guest worker programs include a
number of provisions intended to protect domestic workers. We can debate whether
those policies go too far or not far enough, but it is imperative we continue to support our fellow citizens struggling to find work.
We do realize, however, there are times when the supply of domestic labor falls
short of demand. For a variety of reasons and despite their best efforts, some employers simply cannot hire the workforce necessary to run their businesses. Guest
workers help fill that void.
The Immigration Nationality Act currently includes several guest worker visa programs, such as the H-1B program for highly-skilled workers and the H-2B program
for temporary non-agricultural workers. The law allows foreign workers to be admitted for a specific period of time and purpose.
Under the H-2B program specifically, guest workers can enter the United States
for up to 10 months and their stay can be extended up to three consecutive years.
An employer petitioning for guest workers must certify that domestic workers are
unavailable, as well as demonstrate the hiring of foreign workers will not harm the
wages and employment of Americans.
We will examine today whether these programs serve the best interests of workers and employers. No doubt that is a large undertaking for one hearing and involves a number of important questions.
For example, do limits on the number of visas issued each year undermine the
success of these programs? Will regulatory proposals put forward by the administration make it easier or more difficult for employers to obtain foreign labor? Do we
4
have the right tools in place to ensure protections for American workers are adequately enforced? Do the current temporary visa programs meet the long-term needs
of employers seeking lower-skilled workers?
It is difficult for any federal program or law to keep pace with our dynamic economy. Shifting demographics can alter the landscape of Americas workplaces. New
industries and technologies constantly change how businesses provide goods and
services to consumers.
While such developments often improve our lives, they also raise difficult questions that need to be addressed by policymakers. I hope our hearing today will inform the debate that is taking place nationwide.
Again, Id like to thank our witnesses for joining us, and I will now recognize my
distinguished colleague Joe Courtney, the senior Democratic member of the subcommittee, for his opening remarks.
Mr. COURTNEY. Well thank you, Mr. Chairman. And I particularly want to compliment you for organizing this hearing early in
this Congress because there is no question that since the election
last November this issue has suddenly gotten a lot more political
momentum, and obviously we want to make sure this subcommittee and our full committee are active and full participants
in any legislative efforts.
Mr. Chairman, we are meeting today to discuss the role of lowskilled guest worker programs in our country. As I said, this discussion comes at an important moment as we consider a framework
for comprehensive immigration reform.
Prior to the 2012 election, real, meaningful reform of our nations
immigration policy seemed completely out of the political realm of
the possible. Sadly, the last major effort, the DREAM Act, which
was passed in the lame duck session in 2010, seemed to be the
high watermark for this era. But nonetheless, the election has really changed the political dynamics surrounding this whole issue.
And we are seeing encouraging bipartisan agreements among our
Senate colleagues and an agreement on a set of shared principles
for reform between the U.S. Chamber of Commerce and the AFLCIO. I am deeply encouraged by this progress and agree with the
joint statement released by the chamber and the AFL that todays
effort at comprehensive immigration reform present a historic opportunity for U.S. workers and businesses to work together to fix
a broken system.
I dont think there is a single member of Congress who has casework in their district offices that cannot say that this has just become an overwhelming volume of work, whether it is family unification, whether it is work visas, tourist visas, J-1, you name it.
Again, the folks that work for us in our district office feel every single day the dysfunctional system that we have in place and it is
time to fix it.
But the basic principles which have been issued, I think, are important to state at the outset, which is first and foremost, any
work-based visa program for foreign workers must protect employment opportunities for U.S. workers. It must also prevent the exploitation of guest workers.
Today the national unemployment rate stands at 7.7 percent; 12
million U.S. workers are looking for jobs. And that is probably understated, in terms of people who have just sort of left the marketplace.
5
The unemployment rate in many of the industries that utilize the
largest number of H-2B visa guest workers programs is even bigger. The February 2013 unemployment rate in the construction
trades was 15.7 percent; leisure and hospitality, 11.2 percent. That
is almost 3 million U.S. workers just in those two sectors alone
looking for a job. We must ensure that those workers have a meaningful chance at the jobs that are available in these industries.
This morning we have the chance to examine the role of lowerskilled temporary foreign worker program in our nation. I hope
that we consider what impact guest worker programs have on
wages and working conditions.
Are employers and industries that rely heavily on H-2B workers
paying a fair and competitive wage? Are there some jobs that U.S.
workers are simply unwilling or unavailable to perform, or does reliance on guest worker programs create a situation whereby the
wages and demands of an industry make it nearly impossible for
American workers to take on those jobs and put food on their familys table?
Earlier this week the Bureau of Labor Statistics determined that
the personal care home health aides are the fastest-growing job
classification in our country. On average, DOL found that full-time
workers in this field earn about $20,000 a year. The hours are long,
the work is physically and emotionally challenging. That makes it
difficult to maintain a stable workforce.
The question to consider today is, will opening this type of work
to guest workers address any workforce shortage in a way that is
good for our nations economy, good for U.S. workers, and fair to
the guest workers who end up in these jobs?
Mr. Chairman, we have a responsibility to ensure that our nations immigration laws meet the needs of our countrys workers
and employers. We also have a responsibility to our nations guest
workers.
The reality is is that these workers perform difficult work and
enjoy few workplace protections. During the Bush administration,
DOL loosened the rules governing the H-2B program. Employers
merely had to attest that they have attempted to recruit U.S. workers for open positions; they no longer were required, in many instances, to demonstrate that their recruitment effortstheir recruitment efforts or coordinate with the state workforce agency.
The administration also adjusted the wage requirements, putting
downward pressure on wages in H-2B programs. Under the common sense rules proposed by the Obama administration many of
these damaging changes were addressed.
Specifically, the wage rate reform rule would have increased the
wages paid to H-2B workers and similarly employed U.S. workers
by an average of $4.83 an hour. There is no question that better
wages would attract more U.S. workers to these jobs and enable
them to stay in these jobs. However, the regulations remain tied
up in litigation or are delayed by appropriation riders.
I hope todays discussion is the start of a productive debate on
immigration reformone that seeks to serve this nations workers
and employers. What we dont need is a race to the bottom here
at home, with workers forced to compete for lower and lower-wage
jobs.
6
We need to be careful about how we administer any temporary
guest worker program to ensure that foreign workers are not exploited and that U.S. workers have a shot at available jobs. Anything less will undermine the jobs, wages, and working conditions
of U.S. workers and the guest workers laboring with them.
I look forward to exploring these issues and hearing from the
witnesses.
Thank you, Mr. Chairman. I yield back.
[The statement of Mr. Courtney follows:]
Prepared Statement of Hon. Joe Courtney, Ranking Member,
Mr. Chairman, today we are meeting to discuss the role of lower-skilled guest
worker programs in our economy. This discussion comes at an important moment,
as we consider a framework for comprehensive immigration reform. Prior to the
2012 election, real, meaningful reform of our nations immigration policy seemed unlikely. However, todays hearing comes in the wake of encouraging bipartisan agreements among our Senate colleagues and an agreement on a set of shared principles
for reform between the Chamber of Commerce and the AFL-CIO. I am deeply encouraged by this progress and agree with the joint statement released by the Chamber and the AFL that todays efforts at comprehensive immigration reform present
a historic opportunity for U.S. workers and businesses to work together to fix a broken system.
First and foremost, any work-based visa program for foreign workers must protect
employment opportunities for U.S. workers. It must also prevent the exploitation of
guest workers. Mr. Chairman, today the national unemployment rate stands at 7.7
percent12 million U.S. workers are looking for a job. The unemployment rate in
many of the industries that utilize the largest number of H-2B guest workers is
even higher. The February 2013 unemployment rate for the construction industry
was 15.7 percent and in leisure and hospitality the unemployment rate was 11.2
percentthat is almost 3 million U.S. workers looking for a job. We must ensure
that these workers have a meaningful chance at the jobs that are available in these
industries.
This morning, we have the chance to examine the role of a lower-skilled temporary foreign worker program in our nation. I hope that we consider what impact
guest worker programs have on wages and working conditions. Are employers in the
industries that rely heavily on H-2B workers paying a fair, competitive wage? Are
there some jobs that U.S. workers are simply unwilling or unavailable to perform?
Or, does reliance on guest worker programs help create a situation whereby the
wages and demands of an industry make it nearly impossible for American workers
to take those jobs and put food on their familys table? Earlier this week, the Bureau of Labor Statistics determined that personal care aides/home health aides are
the fastest growing job classifications in this country. On average, DOL found that
full-time workers in this field earn around $20,000 a year. The hours are long and
the work is physically and emotionally challenging. That makes it difficult to maintain a stable workforce. The question to consider today is, will opening this type of
work to guest workers address any workforce shortage in a way that is good for our
nations economy, good for U.S. workers, and fair to the guest workers who may end
up in those jobs.
Mr. Chairman, we have a responsibility to ensure that our nations immigration
laws meet the needs of our countrys workers and employers. We also have a responsibility to our nations guest workers. The reality is that these workers perform difficult work and enjoy few workplace protections. During the George W. Bush Administration, the Department of Labor loosened the rules governing the H-2B program.
Employers merely had to attest that they have attempted to recruit U.S. workers
for open positions, they no longer were required to demonstrate their recruitment
efforts or coordinate with state workforce agencies. The Bush Administration also
adjusted the wage requirements, putting downward pressure on wages in the H-2B
program. Under common sense rules issued by the Obama Administration, many of
the damaging changes the Bush Administration made to the H-2B program were addressed. Specifically, the wage rate reform rule would have increased the wages
paid to H-2B workers and similarly employed U.S. workers by an average of $4.83
per hour. There is no question that better wages would help attract more U.S. workers to those jobs and enable them to stay in those jobs. However, the regulations
remain tied up in litigation or delayed by appropriations riders.
7
I hope todays discussion is the start of a productive debate on immigration reformone that seeks to serve this nations workers and employers. What we dont
need is a race to the bottom here at home, with workers forced to compete for lower
and lower wage jobs. We need to be careful about how we administer any temporary
guest worker program to ensure that foreign workers are not exploited and U.S.
workers have a shot at available jobs. Anything less will undermine the jobs, wages,
and working conditions of U.S. workers and the guest workers laboring with them.
I look forward to exploring these issues and hearing from the witnesses. Thank you,
Mr. Chairman.
Chairman WALBERG. I thank the gentleman.

Pursuant to committee rule 7(c), all members will be permitted
to submit written statements to be included in the permanent
hearing record, and without objection, the hearing record will remain open for 14 days to allow statements, questions for the
record, and other extraneous material referenced during the hearing to be submitted into the official record.
It is a privilege to introduce our witness panel this morning.
First, Ms. Laura Reiff is a co-managing shareholder of the Greenberg Traurig law firm of McLean, Virginia. She is testifying on behalf of the Essential Worker Immigration Coalition.
Welcome.
Our second witness is Mr. Fred Benjamin, who is chief operating
officer at Medicalodges, Inc., in Coffeyville, Kansas. Could use some
coffee right now, maybe. That works. Mr. Benjamin is testifying on
behalf of the American Health Care Association.
Thank you for being here.
Ms. Mary Bauer is the legal director at the Southern Poverty
Law Center in Montgomery, Alabama.
Thank you for joining us again.
And then it is a special privilege for me to introduce Mr. Dan
Musser, who is the president of the Grand Hotel in Mackinac Island, Michigan.
Allowing personal privilege here, I certainly give a very easy recommendation and advertisement for the Grand Hotel. If you have
not been there you havent lived, to sit on the longest porch in the
world looking at some of the greatest scenery in the Straits of
Mackinac, on an island where the only sound you will basically
hear other than happy voices is the clippety-clop of horses and carriages, since those are the only transportation sources on the island. If you have missed it, you have missed it and it is about time
to take care of that.
Welcome.
Mr. Chairman? When you sit this
Mr. KLINE. [Off mike.]
Chairman WALBERG. Oh, gee whiz. Dont you wish. [Laughter.]
Before I recognize each of you to provide your testimony let me
briefly explain our simple lighting systemmuch like traffic lights.
I am sure you understand that you will have 5 minutes to present
your testimony.
When you begin the light in front of you will turn green; when
1 minute is left, caution, a light yellow comes on; when your time
is expired the light will turn red, at which point I ask that you
would wrap up as quickly as possible to allow the questions that
8
will come that will allow you to expand on what you have said, I
am certain.
After you have testified members will each have 5 minutes to ask
questions of the panel with the same light source available to
them.
And so at this time I would recognize Ms. Reiff for your presentation. Thank you.
STATEMENT OF LAURA FOOTE REIFF, COMANAGING SHAREHOLDER, GREENBERG TRAURIG LLP, TESTYFYING ON BEHALF OF THE ESSENTIAL WORKER IMMIGRATION COALITION
Ms. REIFF. Thank you, Chairman Walberg, and Ranking Member

Courtney, and distinguished members of the committee. Good
morning and thank you for the opportunity to testify before the
committee today.
My name is Laura Reiff and I am a partner at the law firm of
Greenberg Traurig. I also run the national immigration practice for
the firm, and I have been involved in immigration legislative issues
for the past 20-plus years.
I am also one of the founders and on the leadership team of the
Essential Worker Immigration Coalition, the business coalition
that has been put together on immigration reform. And we have
been working together to help effect immigration change since
1999.
It is a privilege for me to be here today to discuss the role of lesser-skilled worker programs as Congress wrestles with comprehensive immigration reform issues.
It is very important to note that an overhaul of the immigration
policy to meet our national security and economic needs is long
overdue. It has been more than 26 years since the last reform. It
is really time for good public policy to take center stage.
The Immigration Reform and Control Act was passed in 1986
when I was still in law school. It was designed to be a solution to
the broken immigration system.
The law included a new immigration legal program that brought
more than 3 million people out of the shadows and granted them
lawful status. There was also a plan to hold employers accountable
for hiring workers by asking them to check the identity and work
authorization of new hires, and as a counterbalance to employer
verification there were antidiscrimination requirements passed to
ensure that employers didnt discriminate in hiring based upon citizenship or national origin. This was supposed to be the solution in
1986.
The idea was good but things went dreadfully wrong over the
past two decades. The programs didnt work the way they were envisioned.
Millions of foreign workers entered the U.S. in questionable status and took jobs with U.S. employers. Most employers did go
through all the employment verification processes but the new
workers had documents to satisfy those requirements.
Why didnt these foreign workers enter the U.S. legally or why
did they overstay their status and take jobs without authorization?
The answer is very simple: There was no immigration program
9
available to those foreign workers that wanted to enter the U.S.
lawfully.
What is needed now to correct this employment-based immigration, this broken employment-based immigration system, is a workable employment eligibility verification program for employers, a
functional temporary worker program that allows employers to hire
foreign workers when U.S. workers are not available, and some
sort of stabilization of the existing foreign workforce that is embedded in the U.S. economy over the last two decades.
Current visa programs dont address the problem, as the chairman stated. We have an H-1B program, which is for highlyskilled
individuals with at least a bachelors degree. We have an H-2A program, which is for seasonal agricultural workers. We have an H2B program, which is for seasonal non-agricultural workers. And
then some other extraneous visa programs, like the TN, Trade
NAFTA program, which is for professionals from Canada or Mexico.
These current visa programsthe H-1B has kind of been seen as
the model of a temporary worker program that should be used for
a new worker program. It is a program that is limited to 6 years.
Again, it has tothe individual must come in and be sponsored
by an employer. The employer must have a position that requires
an individual with a university degree. And the program is capped
at 65,000 numbers per year.
It is an arbitrary cap. That cap has been reached every year over
the past 10 years and it is anticipated that that cap will be reached
on April 1 of 2013 for the next fiscal year 2014 number of H-1B
visas. That cap is the filing date is coming up imminently.
The H-2B program has been a program for seasonal non-agricultural workers, and you will hear from Mr. Musser today about how
that program works. It is not a program that fits the needs of our
economy. And it is not a program that deals with full-time permanent employment.
H-2B visas are used in industries such as landscaping, seasonal
hospitality, fish processing and there is a cap on that program as
wellan arbitrary cap of 66,000.
These existing types of temporary worker programs do not begin
to meet all the needs of our complex U.S. economy. There is no
temporary worker program that addresses the huge gulf between
these programs and the complexities of the many different kinds of
jobs and skills that are out there. Employers need a way to recruit
foreign workers when they cannot find a U.S. worker after rigorous
recruitment, and currently there are very few realistic mechanisms
to accomplish that.
Employers are experiencing persistent and recurring job openings despite the downturn in the economy. Many positions remain
unfilled despite extensive recruitment efforts of U.S. workers.
Some industries that have expressed concern: meat processing,
specialty construction employers, manufacturing, restaurant and
food service, hospitals, and you will hear today about hotels and resorts and senior care medical facilitiesnursing homes.
We need to fill the program gap that was left in 1986. The Essential Worker Immigration Coalition has worked together with
10
other advocates to come up with a new model, a model that we
think actually can work for a new worker program.
In contrast with other existing U.S. temporary worker programs,
under this new proposal employers would not sponsor workers for
visas and workers would not be tied to specific jobs or specific employers. But workers would, rather, be able to change jobs and
work for any employer who is registered to participate in a program.
I have put the full details in the testimony, but here are a few
quick highlights: it would be a two-track program; employers would
register for slots after doing rigorous recruitment; employees would
then be able to register for a slot.
There would be complete portability. Employees would be able to
move between registered employers.
The cap would not be arbitrary; it would be flexible and marketbased, based on demand so that when employers needed workers
after testing the U.S. market they would be able to bring workers
in.
Wages would be the wages that would be paid to actuallyto
similarly-situated U.S. worker or the prevailing wage, whichever is
higher. And we actually propose having a pretty detailed monitoring system to make sure that employees that are here are monitored while they are here and that their status is checked so that
there is a workable employment eligibility verification system and
a way to track employees when they are here.
Chairman WALBERG. We will look forward to plumbing the
depths further, but
Ms. REIFF. So I thank you for allowing me to testify today, and
I am looking forward to answering questions.
[The statement of Ms. Reiff follows:]
Prepared Statement of Laura Reiff, Principal Shareholder, Greenberg
Traurig; Chair, Business Immigration and Compliance Group on behalf of
the Essential Worker Immigration Coalition
Chairman Walberg, Ranking Member Courtney, and distinguished members of
the Committee, good morning, and thank you for the opportunity to testify today
before the Committee. I am Laura Reiff, the Co-Managing Shareholder of Greenberg
Traurig, LLPs (GT) Tysons Corner Office and Co-Chair of GTs Business Immigration and Compliance Group. I focus my practice on business immigration laws and
regulations affecting U.S. and foreign companies, as well as related employment
compliance and legislative issues.
I am also one of the founders and a member of the leadership team of the Essential Worker Immigration Coalition. The Essential Worker Immigration Coalition
(EWIC) is a coalition of businesses, trade associations, and other organizations from
across the industry spectrum that support reform of U.S. immigration policy to facilitate a sustainable workforce for the American economy while ensuring our national security and prosperity.
Overview
It is a privilege for me to be here today discussing the role of lower-skilled guest
worker programs as Congress wrestles with comprehensive immigration reform
issues. It is very important to note that an overhaul of our immigration policy to
meet our national security and economic needs is long overdueit has been more
than twenty-six years since the last reformit is time for good public policy to take
center stage.
The Immigration Reform and Control Act of 1986 was designed to be a solution
to a broken immigration system of the day. The law included a new legal immigration program that brought more than 3 million people out of the shadows and granted them lawful status. There was also a plan to hold employers accountable for hiring workers by asking them to check the identity and work authorization of new
11
hires. As a counter balance to employer verification, there were antidiscrimination
requirements passed to ensure that employers didnt discriminate in hiring based
upon citizenship and national origin.
This was to be the solution. The idea was good, but many things went dreadfully
wrong over the past two plus decades. The programs didnt work the way they were
envisioned. Millions of foreign workers entered the U.S. in questionable status and
took jobs with U.S. employers. Most employers did go through an employment
verification process, but the new workers had documents to satisfy the requirements. Why didnt these foreign workers enter the U.S. legally or overstay their status and take jobs without authorization? The answer is simplethere was no immigration program available to foreign workers who wanted to enter the U.S. lawfully.
What is needed to correct this broken employment based immigration system is (1)
a workable employment eligibility verification program; (2) a functional temporary
worker program that allows employers to hire foreign workers when U.S. workers
are not available and (3) some sort of stabilization of the existing foreign workforce
that is embedded in the U.S. economy.
Current Visa Programs for Lesser Skilled Workers
Most foreign workers entering the U.S. to work enter under one of the following
categories: professionals, and executives or managers; agricultural workers or seasonal non-agricultural workers. Traditionally, the visa status used for technical professionals is the H-1B. Canadian and Mexican professionals are eligible for expedited visa and admission procedures pursuant to the North American Free Trade
Agreement (NAFTA) under a TN visa. An employer may sponsor an unskilled worker for permanent residence, or greencard status, but this is category is restricted
to 10,000 visa numbers per year. Due to backlogs in this category, it can take 10
15 years to actually enter the U.S. in this category and for most employers that is
not a realistic or timely method to bring in workers.
The commonly used temporary worker programs in existence today are the H-1B,
the H-2B, TN and the H-2A programs. The H-2A agricultural visa program has
proven to be difficult to use and not responsive to the realities of the agricultural
workplace.
H-1B VisaTemporary Specialty Worker Visa
The H-1B visa is available to nonimmigrants who are temporarily employed in
professional positions that qualify as specialty occupations. A specialty occupation requires the theoretical and practical application of a body of highly specialized
knowledge, and the attainment of a bachelors degreeor its foreign equivalent
or higher in a specific specialty as a minimum for entry into the occupation in the
United States.
The position to which the individual is transferred must be professional. Professional positions include positions such as engineer, computer systems analyst, financial analyst, attorney, accountant, and many others; these are considered occupations for which a bachelors degree is the minimum requirement for entry. If the
employee has the equivalent of a U.S. bachelors degree and an employer requires
his/her services in a professional position, the employee should qualify for an H-1B
temporary worker visa. H-1Bs visas are employer and location-specific. The initial
period of stay granted to H-1B beneficiaries is three (3) years, with the option to
extend their status in three (3) year increments. At the end of the six (6) year term,
beneficiaries must spend one (1) full year outside the United States before being
permitted to re-enter in H-1B status.
All H-1B petitions must be filed by the employer. Prior to filing an H-1B petition
with the USCIS, the employer must first attest to the Department of Labor that
the alien will receive a salary commensurate with the prevailing wage for U.S.
workers in the same job category. The employer must also make certain attestations
to show that U.S. workers are in no way disadvantaged by the hiring of the foreign
national. The employer must also attest that it offers its U.S. and H-1B workers
the same benefits. A notice of the filing and the attestations must be posted internally along with the offered salary and the prevailing wage for ten (10) consecutive
days in two (2) conspicuous locations. The employer is also required to obtain and
maintain documentation to support each of the Labor Condition Statements made
on the Labor Condition Application (LCA).
An employer must maintain a Public Access File (PAF) that is accessible to interested and aggrieved parties, and kept separate from personnel records. The PAF
must be available at either the employers principal place of business or at the worksite within one (1) day after the LCA is filed with supporting documentation
There is currently 65,000 H-1B visas allocated every fiscal year. The cap has been
reached well before the end of the fiscal year for the past several years, meaning
12
that new H-1B petitions are not available until the next federal fiscal year (starting
October 1). There are also 20,000 available visas per year for nonimmigrants who
have earned a Masters degree or higher from a U.S. institution.
Trade NAFTA TN Status
NAFTA has special provisions for Canadian and Mexican citizen professionals
who are offered a position in the U.S. The professional visa status under NAFTA
is called Trade NAFTA status or TN status. The person must be coming to work
in an occupation on the NAFTA list. A Canadian citizen who fits within one of the
TN occupational categories may present documentation at the border in order to obtain a TN. If a Canadian national does not fit within one of the given professions
identified in the NAFTA, he/she still may qualify for the standard H-1B category
for specialty occupations. Mexican nationals may qualify for TN status. However,
there is a limit of 5,500 Mexican TN visas per year. In addition, Mexican nationals
must first obtain a labor condition attestation from the Department of Labor and
be pre-approved by the USCIS within the U.S. The process is similar to the process
for H-1B status.
H-2BSeasonal Non-Agricultural Temporary Worker
The other major temporary worker program is the H-2B program. This program
is designed specifically to allow foreign nationals to work for a sponsoring employer
in a job that is only temporary in nature; for example, to fill a seasonal job (but
not in agriculture), to meet a one-time project or need, to add additional staff during
a time of exceptionally high peak load, or to fill a position that is intermittently
used in the business. H-2B visas are used in industries such as landscaping, seasonal hospitality (such as resort hotels, restaurants and attractions), and seasonal
construction, as well as to meet specific needs in manufacturing, retail and other
industries. The cap on H-2B visas is 66,000 annually. The H-2B program helps supplement the native-born workforce, but it cannot be used to fill all types of jobs because of the seasonal nature of the visa. A company has to first recruit and advertise for the opening in the U.S. The employer must then obtain a temporary labor
certification from the Department of Labor, receive approval from the Department
of Homeland Security, and then request that the visa be issued through consular
process of the Department of State.
The existing types of temporary worker programs do not begin to meet all of the
complex needs of the U.S. economy. In sum, the H-1B program is focused on higherskilled immigrant workers, while the H-2B program is limited to short-term, seasonal types of work, although it allows for recruitment of lower-skilled workers. Furthermore, particularly when viewed against a domestic economy of over 154 million
workers, the caps are simply unrealistic. There is no temporary worker program
that addresses the huge gulf between these programs and the complexities of the
many different kinds of jobs and skill levels. Employers need a way to recruit foreign workers when they cannot find a U.S. worker, and currently there are few realistic mechanisms to accomplish that.
What are the Needs of our Economy and Business
The population of the U.S. as a whole will increase over the next several decades.
However, this population is aging, more educated and participating at lower rates
in the workforce. The demographic changes caused by our aging workforce and the
lower participation of the baby boomers will have long lasting effects on our labor
market.1 The Bureau of Labor Statistics also has projected job growth, both in lowskilled and high-skilled occupations. The BLS expects that between 2010 and 2020
the number of U.S. jobs will increase by 20 million.2
Employers are experiencing persistent and recurring job openings. Many positions
remain unfilled despite extensive efforts to recruit and retain U.S. workers. Some
of the industries that have expressed concern include: Meat Processing, Specialty
Construction Employers; Manufacturing; Restaurants and Food Service; Hospitals;
and as you have heard here today, Hotels and Resorts and Senior Care Medical Facilities. Here is a short list of some of the positions that I am aware of that are
in need of workers.
Industry/Positions with Identified Needs:
Landscaping Industry
Landscape Laborer
Irrigation Technician
1 Bureau of Labor Statistics, Projection of the Labor Force to 2050. Monthly Labor Review,
October 2012.
2 Bureau of Labor Statistics, Labor Force Projections to 2020. January 2012.
13
Crew Leader
Tree Surgeon Assistant
Manufacturing
Welders
Electricians
Health Care
Nurses
Certified Nursing Assistants
Licensed Practical Nurses
Construction Industry
First Line Supervisor/ Managers of Construction
Steel Workers and Structural Iron Workers
Brick mason and Block masons
Cement Mason and Concrete Finishers
Roofers
Hotel Industry
Baggage Porters and Bellhops
Hotel, Motel, and Resort Desk Clerks
Maids and Housekeeping Cleaners
Restaurant Industry
Food Service Manger
Chefs and Head Cooks
First-line Supervisors/ Managers of Food Prep & Servers
Cooks/Restaurants
Dishwasher
Cooks/Fast Food/Crew Member (non-managerial)
Other Positions
Carpenter
Helper-Carpenter
Plumbers, Pipefitters and Steamfitters
Helper-Plumber
Meat Processor
Housekeeping Cleaner
Truck Driver
EWIC Proposal for a Temporary Worker Program
We need to fill the program gap that was left in 1986 with a supplemental worker
program that can be used when U.S. workers cannot be found. A visa program that
allows employers from across the spectrum to obtain workers from abroad should
be established so that all employers with worker needs that cant be filed by U.S.
workers can bring workers to this country through legal channels. Since 1999,
EWIC has supported new worker programs that meet business needs. EWIC has
worked with businesses and other advocates to develop a program that fills this critical gap in our legal immigration system.
A critical element of a program is to supply the U.S. economy with the workers
it needs to recover from the downturn and grow in years ahead. This visa program
must give employers, not the government, the primary say in which workers they
need to staff their businesses and give the labor market the primary say in how
many workers enter the country annually in a legal program. The marketplace can
best make these determinations. The most accurate way to measure whether immigrant workers are needed is for employers to tryand either succeed or failto hire
U.S. workers. The enclosed Exhibit is the most recent proposal for a new worker
program.
As described above, of the many inadequacies of the existing legal immigration
system, few are as damagingwith worse consequences for immigrants or for the
U.S. economythan the lack of a visa program for less skilled immigrants seeking
to enter the country legally and work in the United States. EWIC developed a proposal to fill this void: a provisional visa program designed to reflect market dynamics, expanding in good times when U.S. labor needs intensify and contracting in
downturns when U.S. labor needs subside.
In contrast with other existing U.S. temporary worker programs, under this proposal, employers would not sponsor workers for visas, and workers would not be tied
to specific jobs or specific employers, but rather would be free to change jobs at will,
working for any employer who is registered to participate in the program. The following is a short synopsis of the key program points:
TWO APPLICATION TRACKS. One track is for employers who demonstrate they
have tried and failed to find U.S. workers and are given permission to hire lessskilled foreign workers for specific, registered jobs. The other track is for foreign
14
workers who are granted visas based on initial job offers, but then are free to
change jobs in the U.S., accepting work from any employer who has demonstrated
a labor need and been registered with the program.
COMPLETE PORTABILITY. The foreign worker is not tied to a specific job for
a specific employer but rather is free to work for any employer who has tested the
market and been registered with the program.
OCCUPATIONS COVERED. Any nonfarm, low-skilled job that does not require
a college degree as standard preparation, including year-round employment.
DUAL INTENT. The initial visa is temporary: two years, renewable twice. But
just as high-skilled H-1B temporary visa holders can eventually transition to permanent visas, so low-skilled workers in this program can eventually earn the right to
get in line for a green card. Who can make the transition will be determined by an
evaluation of the newcomers rootedness, assimilation and personal success in the
U.S.
LABOR MARKET TEST. Attestation-based with back-end audits. Before they can
be registered, employers must test the labor market, making a good faith effort to
recruit U.S. workers, and every two years, they must reapply, demonstrating their
continued labor need and keeping their registration current.
NUMBER OF VISAS AVAILABLE. The number of visas issued each year will
float up and down in response to U.S. labor needsneed demonstrated and quantified by the employer attestation process. Employers who have tried and failed to
find U.S. workers will attest to their job openings and recruitment efforts. The government will approve a given number of registered job openings, and the annual
visa quota will be adjusted to meet this demand using a mathematical formula.
WAGES. Participating foreign workers will receive the actual wage paid to similarly situated U.S. workers in the same location OR an agreed upon prevailing
wage, whichever is greater. The prevailing wage will be determined by any relevant
collective bargaining agreement, applicable Davis-Bacon and Services Contract Act
requirements, the Bureau of Labor Statistics-determined wage for that occupational
classification or a private wage survey that meets standards specified by the Secretary of Homeland Security.
E-VERIFY and an ELLIS MONITORING SYSTEM. Movement of workers from
job to job will be tracked electronically by a government monitoring system and
through E-Verify, and the two systems will be coordinated.
A new temporary worker program to meet the needs of an expanding economy
will also enhance our national security and control over our borders. When available
jobs are filled (after recruitment in the domestic labor pool) by legal foreign workers,
there will no longer be jobs to be filled by those who may come here illegally and
thus, the magnet that drives much illegal immigration will be eliminated. A successful temporary worker program should bring these economic migrants through lawful
channels allowing the Border Patrol to focus on the real threats coming across our
border.
Conclusion
What is needed, and the challenge you face as legislators, is an immigration system that reflects the needs of the economy. Picking an arbitrary number of immigrants to be allowed into the U. S. and only allowing some industries the workers
needed at the expense of other industries is not in our national interest. If we want
the economy to grow, we will need workers. When we cant find U.S. workers we
need to be able to hire foreign workers.
Immigration is a complex, complicated problem. It deserves more than piecemeal
solutions, more than a patchwork of regulation at various levels of government. It
deserves a thoughtfully reasoned solution from the people who have true responsibility for immigration law: Congress and the President. Thank you.
Chairman WALBERG. Thank you. Your Swedish heritage gave you

a little less extra time there. I ask for forgiveness on that one.
Mr. Benjamin, we recognize you for your 5 minutes of testimony.
15
STATEMENT OF FRED BENJAMIN, CHIEF OPERATING OFFICER, MEDICALODGES, INC., TESTIFYING ON BEHALF OF THE
AMERICAN HEALTH CARE ASSOCIATION
Mr. BENJAMIN. Good morning, Chairman Walberg, Ranking

Member Courtney, and distinguished members of the subcommittee. I would like to thank you for holding this hearing to explore the labor shortage facing our country and I especially appreciate the opportunity to appear before you here today.
My name is Fred Benjamin and I am chief operating officer of
Medicalodges, a company that offers a continuum of health care
services and options which include skilled nursing care, rehabilitation, assisted living, services for people with developmental disabilities, intellectual disabilities, and more. Medicalodges is a member
of the American Health Care Association, which in turn is a member of the Essential Worker Immigration Coalition.
We are an employee-owned company and operate over 30 facilities in Kansas, Missouri, and Oklahoma and employ over 2,200
people. We have critical staffing needs. There are chronic shortages
throughout the nursing home community. It is a daily struggle to
find enough dedicated caregivers, yet we are responsible for the
lives of 1.5 million frail and elderly citizens nationwide, and this
is the fastest-growing segment of our population.
The general causes of the shortage have been explored, but we
in the nursing industry are also confronted with chronic underfunding through Medicare and Medicaid, which prevents us from
offering higher wages tobeing paid to our workers; a newly altered regulatory system that focuses on fines and penalties; dramatically increased competition for caregivers from all variety of
health care delivery systems; annual turnover rates nearing 100
percent; and an aging workforce.
We are almost completely dependent on the government for payment for our services and do not have the ability to raise our
prices. Nearly 80 percent of our residents are beneficiaries of the
Medicare or Medicaid programs.
And while we do not have the ability to raise our prices, we also
have little ability to reduce our expenditures. The government
inspectsnursing homes every year to look for errors in compliance
with several hundred regulations and accompanied by fines of up
to $10,000 per day for noncompliance.
Dedicated caregiving staff that work in our facilities are the unsung heroes of the American workforce. The job of caring for the
elderly and disabled is very demanding.
Because of the difficulty of the job and our inability to increase
wages or prices, long-term care has always been a high-turnover
industry. My companys turnover rate in the lower-skilled categories is approximately 60 percent annually, and that is significantly lower than most companies in the industry.
For many the first reaction is, You are not paying enough. That
is simply not true.
At Medicalodges certified nurses aides presently receive an average of $11.50 per hour plus benefits, and these include health insurance, participation in the company employee stock ownership
program, 401k, tuition reimbursement, vision, dental, and more.
We regularly review wage rates for competitiveness.
16
We need certified nurses aides, licensed practical nurses, and
registered nurses to provide skilled services around the clock in
every facility. Vacancy rates for CNAs can approach 20 percent; for
LPNs, 10 percent; and for RNs, 10 percent as well.
So what have we done to address these vacancies and shortages?
Well, historically I have hired extensively from the welfare rolls.
The nursing home industry in general has hired over 50,000 welfare recipients in the last 3 years.
We have offered signing bonuses; we have set up tables in grocery stores to recruit new employees; sent direct mail; posted job
openings in newspapers, communities, schools, and even laundromats. We offer multiple incentives for recruitment, yet it is still
not enough.
So in conclusion, our labor shortage is our most pressing operating problem. If we are to meet the expectations set for us policymakers must act now and expand the pool of new staff.
I would like to present some solution options for you. First, we
need to increase the staff supply, and there are many talented immigrants who are anxious to enter the caregiving field yet are
faced with insurmountable odds. Please give special consideration
to permitting new entry for immigrants with skilledwith nursing
skills, as well as increasing the pool of unskilled labor.
We need a new immigration systemone that serves the economic needs of the U.S. economy. If an American employer is offering a job that an American citizen is not willing to take we ought
to welcome into our country a person who will fill that job.
We struggle every day to ensure that the labor shortage does not
negatively affect the quality of care delivered in our facilities. This
is a difficult and highly complex balancing act.
I urge you to take a broader look at the staffing crisis and think
about the frail and elderly populations we serveour parents, our
grandparents, aunts, uncles, our neighbors and yoursthose special people who have given so much to us and our country. We owe
it to them to provide the best possible care, dont we?
I am here to ask you: Who will care for them if this critical situation is not addressed immediately?
Thank you. I am happy to answer any questions.
[The statement of Mr. Benjamin follows:]
Prepared Statement of Fred Benjamin, Chief Operating Officer,
Medicalodges, Inc.
Good Morning Chairman Walberg, Ranking Member Courtney, and distinguished
members of the Subcommittee. Id like to thank you for holding this hearing to explore the labor shortages facing our Country, and I especially appreciate the opportunity to appear before you here today. My name is Fred Benjamin, and I am the
Chief Operating Officer of Medicalodges, Inc., a company that offers a continuum
of health care options which include independent living, skilled nursing home care,
rehabilitation, assisted living, specialized care, outpatient therapies, adult day care,
in-home services, as well as services and living assistance to those with developmental disabilities. Medicalodges is a member of the American Health Care Association (AHCA) which is a member of the Essential Worker Immigration Coalition
(EWIC)a broad-based national coalition of businesses and trade associations concerned about the shortage of semi-skilled and unskilled labor.
Medicalodges was launched in 1961 when its first nursing home, Golden Age
Lodge, was opened in Coffeyville, Kansas by founding owners Mr. and Mrs. S.A.
Hann. The company grew through the 1960s with the addition of eight nursing facilities. In 1969, Golden Age Lodges was renamed Medicalodges, Inc. As new care
centers were built or purchased, the company expanded its products and services
17
to include a continuum of health care. In February, 1998 the employees of
Medicalodges acquired the company from its previous owners in a 100% Employee
Stock Ownership Trust transaction. Today, the company owns and operates over 30
facilities with operations in Kansas, Missouri and Oklahoma and employs over 2200
people in the communities it serves.
I have served as the Companys Chief Operating Officer since May, 2009. I am
honored to have served 30-years in this industry that includes senior management
roles in skilled and sub-acute care, hospitals and other for-profit and not-for-profit
ventures. I am also currently serving as Chairman of the Board of the Kansas
Health Care Association, the leading provider advocacy group for seniors in Kansas.
Worker Needs are Critical and The Impact is More Profound in Skilled Nursing Facilities
We have critical staffing needs. There are chronic shortages throughout the nursing home industry. If you are in the business of caring for our nations elderly,
whether you are for-profit, non-profit, or government managed, it is a daily struggle
to find enough dedicated caregivers to care for the people in your charge. Let me
tell you a little about the state of nursing homes today.
We are different from other employers in many ways. We are responsible for the
lives of 1.5 million frail and elderly citizens nationwide. And this is the fastest-growing segment of our population.
The general causes of the shortage have been explored. In addition to the causes
that affect employers of all types, the nursing home industry is confronted with the
following:
Chronic underfunding through Medicare and Medicaid which prevents higher
wages from being paid to our workers;
A newly altered regulatory system that focuses on fines and penalties (often for
failing to provide adequate personnel) instead of the previous system where government employees were encouraged to help centers meet the challenges they face;
Dramatically increased competition for caregivers from assisted living centers,
independent housing for the elderly, home care centers and hospital based nursing
homesall of which seek the workers we traditionally employed;
Annualized turnover rates of nearly 100% in our industry among staff personnel, and now excessively high turnover rates among our managers who are increasingly frustrated with overwhelming paperwork, regulation, and underfunding;
Challenge of caring for infirm and often difficult residents;
Mandated training and certification of most employees;
Need for dedicated and caring personalities;
Increasing age of workforcewith fewer young workers entering long term care;
this means that these young workers are increasingly not choosing long term care
as a profession of choice, which is alarming as baby boomers age in greater numbers.
Government Dependence
We are almost completely dependent on the government for payment of our services, and do not have the ability to raise our prices. Nearly 80% of the residents
in our facilities are beneficiaries of the Medicaid or Medicare Program. Of the remaining 20%, 17% are spending their life savings until they are poor enough to
qualify for Medicaid, and only 3% have private insurance.
While we do not have the ability to raise our prices, we also have little ability
to reduce our expenditures. The government inspects every nursing home every year
to look for errors in compliance with several hundred regulations. These measures
by the government are intended to root out providers of poor carebut as designed
and implemented, only focuses on fines and paperwork, and not on patient care or
quality measurement. If we are found lacking in any small way, we can be subject
to fines up to $10,000 per day or closure. Furthermore, I would never reduce expenditures in a way that would have a negative impact on quality of care. This puts
me, and every other nursing home operator, in a squeeze, and we are asking you
for understanding of our challenges and relief.
The Role of Caregiver
Dedicated caregiving staff that work in our facilities every day and every night
are the unsung heroes of the American workforce. The job of caring for the elderly
and disabled is one of the most demanding jobs on many levels.
It is difficult physically to lift, turn, transport, position, and keep up with our residents care day and night. It is psychologically demanding to work with our Alzheimers residents who are often confused, angry, scared, or lonely, and to make
their days rewarding and productive. It is emotionally draining to care for those in
the twilight of their lives, share their frustration and fears, and still assure that
18
they are getting the very best medical care we can provide. Their needs must come
first, and staff must learn to put their own needs second to their residents. These
are the residents that hospitals cannot care for, whose families cannot care for
them, and who are dealing with multiple chronic illnesses.
Our dedicated staff do a very hard job for a wage that is as much as we can pay,
but never enough, in my opinion, for the service they provide. Without these caregivers, our seniors will suffer.
The shortage of labor and difficulty in finding adequate levels of staff on a daily
basis, 24-hours each and every day of the year, is cited as the number one reason
prompting many of our existing workers to leave our company and seek alternative
employment. We lose some of our best managers during this period of time when
their skills and compassion are crucially needed.
Because of the difficulty of the job, and our inability to increase wages or prices,
long term care has always been a high turnover industry. My companys turnover
rate in lower skilled categories is approximately 60% annuallysignificantly lower
than most companies in the industry. We do focus on retention initiatives and employee recognition and involvement. We have implemented dozens of programs, and
empowered our facilities to implement their own initiatives. We are active in implementing total quality management techniques successfully used by the best companies in America. Indeed, four of our facilities were recently identified by US News
and World Report as among the Best in America.
How to Retain Workers
For many, the first reaction is You arent paying enough. Lets address that perception first. Most people think of nursing homes as a minimum wage employer.
This is simply not true. At Medicalodges, certified nurse aides presently receive an
average of $11.50 per hour, plus benefits, which include health insurance, participation in the company Employee Stock Ownership Program, 401k programs, vision,
and dental care. We regularly review wage rates to ensure that they are competitive.
We are limited in our ability to compete with other employers because of our inability to set the prices for the vast majority of our services. Congress and our nations Governors do that when establishing Medicare and Medicaid rates. In this regard, the State of Kansas, like many others has recently implemented a Managed
Care approach to Medicaid. What many Americans fail to realize is that Medicaid
pays for the long term care services received by 2 out of every 3 skilled nursing patients.
In fact, national data underscores the tight margins within which skilled nursing
facilities operate. Recent data show that out of every health care dollar earned, only
1.5 cents is profit. For Medicalodges, after we pay property and real estate taxes,
whatever is left goes to only two places; our ESOP (employee pension fund) or back
into our facilities.
Secondly, our nursing centers are not factories. We cannot stop the assembly line
or reduce the services we provide to accommodate budget cuts. The elderly we care
for depend on us 24-hours, everyday, weekends and holidays. If we have a staff vacancy, we must fill that vacancy. Ms. Johnson will still need help getting dressed
and eating in the morning. Mr. Smith will need therapy to help him swallow and
learn to walk after a stroke. These services are not optional. We need certified nurse
aides (CNAs), licensed practical nurses (LPNs) and registered nurses (RNs) to provide skilled services around the clock in every facility. We provide services in both
rural and urban locations. Vacancy rates for CNAs can approach 20% for LPNs
10% and RNs 10%.
Addressing the Recruitment Problem
What has Medicalodges done to address the vacancies and shortages?
Historically, I have hired extensively from the welfare rolls. The nursing home industry in general has hired over 50,000 welfare recipients in the last three years.
Most of them are single mothers whom we train to become certified nurse aides,
and put on a career path in health care. This is the only career path that I know
of that can help take people from economically disadvantaged situations to the middle class. Unfortunately, all too often they will complete their training with us, and
then be hired away by hospitals or other providers who do not have to deal with
our heavy reliance on government-set payment rates.
Several states, including Wisconsin and Florida, have taken steps to use federal
funds to help support training programs specifically targeted on meeting the labor
needs of the long term care industry.
In our profession, the residents welfare must be top priority. Hence, we perform
criminal background checks on each potential employee. This process significantly
19
adds to costs, but eliminates an estimated 10% of applicants from eligibility for hire,
and appropriately so.
We have offered signing bonuses of $1,500 for certified nursing assistantsand
even higher for licensed personnel.
We have set up tables in grocery stores to recruit new employees, sent direct
mail, posted job openings in communities, schools, and even laundromats.
We offer multiple incentives for recruitment. We have flexible scheduling, good
benefits, recruitment bonuses, shift differentials, float incentives, pay in-lieu of benefits, and many other programs to attract the dedicated caregivers we need.
Every one of my facilities has a substantial recruitment and retention function.
We make great efforts to reduce turnover and maintain a stable workforce through
flexible scheduling, employee appreciation efforts, mentoring programs, and much
more. We even involve our residents in interviewing candidates. Yet it is still not
enough.
Conclusion
Our labor shortage is our most pressing operating problem. The labor shortage
deprives us of the most valuable resource we have, our caregivers. If we are to meet
the expectations set for us, policymakers must act now to expand access to new
pools of staff and take steps to encourage employment in long term care.
I would like to present solutions to you that will address our staffing crisis:
Of course, I would like to increase staffing, and increase wages. As I mentioned
earlier, I am not able to do so, because Medicaid and Medicare reimbursement levels
do not allow me to. It is truly a national shame that we invest so little in the care
of our elder population. These programs pay for more than 3 of 4 of all my residents.
And that ratio is fairly consistent throughout the field. Please urge your colleagues
in Congress to invest more in our nations elderly and fix these broken and underfunded programs. Enacting a wage pass-through for Medicaid will assist providers
to increase wages.
We need to increase staff supply, and there are many talented immigrants who
are anxious to enter the caregiving field, yet are faced with insurmountable roadblocks. These talented caregivers should be given the opportunity to make a living
and make a difference in their own lives and the lives of others. To increase the
supply of labor, please give special consideration to permitting new entry for immigrants with nursing skills as well as increasing the pool of unskilled labor. We need
a new immigration system that serves the economic needs of the U.S. economy. If
an American employer is offering a job that American citizens are not willing to
take, we ought to welcome into our country a person who will fill that jobespecially a job that has the capacity to improve the health and well being of a vulnerable senior, or person with disabilities.
We struggle every day to ensure that the labor shortage does not negatively affect
the quality of care delivered in our facilities. This is a difficult and highly complex
balancing act that is currently taking place in nursing centers across the country.
I urge you to take a broader look at this staffing crisis and think about the frail
and elderly population we serveour parents, our grandparents, our aunts, our uncles, our neighbors and yoursthose special people who have given so much to us
and our country. We owe it to them to provide the best possible care, dont we? I
am here to ask you who will care for them if this critical situation is not addressed
immediately. Thank You. I am happy to answer any questions that you may have.
Chairman WALBERG. Thank you, Mr. Benjamin.

Ms. Bauer, we now recognize you for your 5 minutes of testimony.
STATEMENT OF MARY BAUER, LEGAL DIRECTOR,
SOUTHERN POVERTY LAW CENTER
Ms. BAUER. Good morning, and thank you for inviting me to

speak about guest worker programs in the United States. My employer, the Southern Poverty Law Center, recently reissued our report about the H-2 program. The report is entitled Close to Slavery and it is based upon the interviews with thousands of guest
workers and our experience representing tens of thousands of these
workers.
20
Put simply, the H-2B program has led to the systematic exploitation of workers in the United States. This abuse and exploitation
has had a deleterious effect on the wages and working conditions
of U.S. workers laboring in industries that employ H-2B workers.
Because of the many abuses in the H-2B program, this program
absolutely must not be the model for any new temporary worker
program in the future.
Guest workers are systematically exploited because the very
structure of the program places them at the mercy of a single employer and provides them no realistic means for exercising the few
rights they have. Guest workers are typically required to borrow
large sums of moneyas much as $20,000to obtain their jobs.
They are forced to mortgage their futures to obtain low-wage temporary jobs.
They are routinely cheated of wages. They are held virtually captive by employers or labor brokers who seize their documents. And
they are often housed in squalid conditions.
H-2 workers can work only for the employer who filed a petition
for them to enter the country. The employer decides if he can come;
the employer decides how long he can stay; and the employer holds
all of the power over the most important aspects of a workers life.
As long as employers in low-wage industries can rely on an endless supply of vulnerable guest workers who lack basic labor protections they have little incentive to hire U.S. workers or to make the
jobs more appealing to domestic workers by improving wages and
working conditions.
A 2008 review of seven occupations using H-2B workers by the
Economic Policy Institute found that 98 percent of H-2B jobs were
set below the average wage rate in that occupation. Astonishingly,
the program does not prohibit the importation of guest workers
during periods of high unemployment. Indeed, the unemployment
rate in a locality or industry is not a consideration for the Department of Labor in determining whether to certify an H-2B application.
Under the program, employers are required to pay a prevailing
wage rate. The purpose of this wage is to ensure that U.S. workers
wages are not depressed by an influx of foreign workers but the
current methodology for calculating the prevailing wage rate is
doing exactly the opposite by setting the prevailing wage rate $4
to $5 lower than the average wage for those occupations.
The Department of Labor itself determined that the current wage
rule degrades the wages of U.S. workers and in response proposed
a new rule that would better protect U.S. workers. This new rule
has been attacked by employers in the courts and its implementation has been effectively blocked by Congress. A more comprehensive set of regulations, designed to protect H-2B and U.S. workers,
has been enjoined by the courts as well.
The legal requirements for recruiting U.S. workers are abysmally
weak. In practice, recruiters and employers pay only lip service, in
many cases, to those requirements, preferring to hire H-2B workersworkers who will be effectively indentured to one employer
during the term of their visa.
We have a more comprehensive set of recommendations in our
written comments and in our report than I can cover here in my
21
remarks. But at a minimum, Congress should insist that the DOL
regulations promulgated to protect workers be allowed finally to go
into effect.
The exploitative recruitment process that traps workers in overwhelming debt must be reformed. And workers should be permitted
the right that all other workers have in our free societythe right
to walk away and find another job. Workers must be given the opportunity to become permanent members of our community over
time and not be trapped, instead, as permanent guests.
In conclusion, the abuses of these programs are too common to
blame on a few bad-apple employers. They are the foreseeable outcome of a system that treats foreign workers as commodities to be
imported without affording them adequate legal safeguards.
I thank you for the opportunity and wait for any questions you
might have.
[The statement of Ms. Bauer follows:]
Prepared Statement of Mary Bauer, Southern Poverty Law Center
Thank you for the opportunity to speak about guestworkers who come to the
United States as part of the H-2B program and about the U.S. workers whose wages
and working conditions are affected by the program.
My name is Mary Bauer. I am a Senior Fellow at the Southern Poverty Law Center (SPLC). Founded in 1971, the Southern Poverty Law Center is a civil rights
organization dedicated to advancing and protecting the rights of minorities, the
poor, and victims of injustice in significant civil rights and social justice matters.
Our Immigrant Justice Project represents low-income immigrant workers in litigation across the Southeast.
During my legal career, I have represented and spoken with literally thousands
of H-2A and H-2B workers in many states. The SPLC has represented tens of thousands of H-2A and H-2B guestworkers in class action lawsuits. We also published
a report in 2013 about guestworker programs in the United States entitled Close
to Slavery, which I have attached to these comments as Exhibit I to my written
testimony.1
The report discusses in further detail the abuses suffered by H-2 guestworkers.
It is based upon thousands of interviews with workers as well as the research related to guestworkers and the experiences of legal experts from around the country.
As the report reflects, guestworkers are systematically exploited because the very
structure of the program places them at the mercy of a single employer for both
their job and continued presence in the United States. It permits workers to enter
the United States. encumbered with overwhelming debtdebt that they paid to get
short-term, low paid work. It provides no realistic means for workers to exercise the
few rights they have.
Just as importantly, the appalling wages and working conditions experienced by
H-2B workers have a demonstrably depressive effect on the wages and working conditions of U.S. workers in industries employing H-2B workers. As long as employers
in low-wage industries can rely on an endless stream of workers, we should expect
wages and working conditions in those industries to drop. Our market economy is
premised on the idea that a shortage of workers will push the market to increase
wages to attract workers from other parts of the economy. Introducing guestworkers
undermines these market mechanisms, artificially preventing wage increases that
we would expect to see in a healthy market sector. This problem is particularly
acute when the workers being introduced into the labor market are vulnerable
guestworkers who lack the basic labor protections available to U.S. workers.
The governments H-2B program undercuts employers incentive to hire U.S.
workers or make jobs more appealing to domestic workers by improving wages and
working conditions. Not surprisingly, many H-2 employers discriminate against U.S.
workers, preferring to hire guestworkers, even though they are required to certify
that no domestic workers are available to fill their jobs. It is well-documented that
wages for
U.S. workers are depressed in industries that rely heavily on guestworkers. Astonishingly, the H-2B program does not prohibit the importation of guestworkers
during periods of high unemployment. Indeed, the unemployment rate in a locality
or an industry is not a consideration for DOL in determining whether to certify an
22
H-2B application. The H-2B program allowed for the importation of 50,009 workers
in 2012.2 In December 2012, there were 12.2 million Americans looking for work.3
The H-2B (non-agricultural) guestworker program permits U.S. employers to import human beings on a temporary basis from other nations to perform work only
when the employer certifies that qualified persons in the United States are not
available and the terms of employment will not adversely affect the wages and
working conditions of similarly employed U.S. workers.4
Prospective H-2B employers must apply to DOL for a temporary labor certification
confirming that American workers capable of performing the work are not available
and that the employment of foreign workers will not adversely affect the wages and
working conditions of similarly employed American workers. The H-2B program requires the employer to attest to DOL that it will offer a wage that equals or exceeds
the highest of the prevailing wage, the applicable federal minimum wage, the state
minimum wage, or the local minimum wage to the H-2B worker. The employer also
must agree to offer terms and working conditions typical to U.S. workers in the
same geographical area.
In practice, the program is rife with abuses. The abuses typically start long before
the worker has arrived in the United States and continue through and even after
his or her employment here. A guestworkers visa is good only so long as he works
for the employer who sponsored him. Unlike U.S. citizens, guestworkers do not
enjoy the most fundamental protection of a competitive labor marketthe ability to
change jobs if they are mistreated.
If guestworkers complain about abuses, they face deportation, blacklisting or
other retaliation. Because H-2B guestworkers are tied to a single employer and have
little or no ability to enforce their rights, they are routinely exploited. If this program is permitted to continue at all, it should be substantially reformed to address
the vast disparity in power between guestworkers and their employers.
In the past several years, the DOL has proposed two sets of regulations to better
protect nonagricultural H-2 workersone related to wage rate guarantees and one
more comprehensive set of regulations. These regulations also would better protect
the jobs and wages of U.S. workers. Unfortunately for workers, neither set of regulations has gone into effect; employers have filed multiple lawsuits challenging them
and Congress has effectively blocked implementation of the new wage regulations.
For workers, then, the abuses continue unabated.
It is virtually impossible to create a guestworker program for low-wage workers
that does not involve systemic abuse and thus erode the wages and working conditions of U.S. workers. The H-2 guestworker program should not be expanded in the
name of immigration reform and should not be the model for the future flow of
workers to this country. If the current H-2 program is allowed to continue, it should
be completely overhauled.
I. The H-2B Program Depresses Wages and Working Conditions for U.S. Workers
As laid out in greater detail in Section II, the H-2B program creates abuse and
exploitation for H-2B workersnot because the program attracts bad apple employers, but because the very structure of the program lends itself to abuse. Because
workers arrive desperately in debt, can work only for their petitioning employer,
and are dependent upon that employer for their very right to enter or remain in
the United States, H-2B workers are incredibly vulnerable. The abuses suffered by
H-2B workers also have an impact beyond that experienced by the guestworkers:
they put profound downward pressure on the wages and working conditions experienced by U.S. workers in industries employing H-2B workers.
A. Wages for H-2B Workers Are Set Far Too Low, Driving Down Wages for
U.S. Workers
It is well documented that there are chronic wage and hour abuses involving H2B workers.5 Since 2004, SPLC has represented guestworkers in obtaining settlements and judgments of approximately $20,000,000. There can be no doubt that the
impact of such pervasive wage and hour violations is to depress wages in those industries. Furthermore, since at least 2005, the prevailing wages paid to H-2B workers has been set far below the median wages that are paid in the applicable industriesagain something that indisputably serves to depress wages.
Under the law, H-2B workers are entitled only to the prevailing wage for their
work; there is no adverse effect wage rate for those workers, as there is with H2A workers. Of course, even though H-2B workers are entitled to payment of prevailing wages and to employment in conformity with required minimum terms and
conditions as provided for in the employers labor certifications, federal law provides
no real remedy when these rights have been violated due to anemic staffing at fed-
23
eral workplace enforcement agencies. For example, 1,100 DOL investigators have
the Sisyphean task of protecting a workforce of 135 million.6
The purpose of the prevailing wage is to ensure U.S. worker wages are not depressed by the influx of foreign workers to the U.S. labor market, but the current
methodology for calculating the H-2B prevailing wage rate is doing the exact opposite. In fact, under the current methodology, the wages of H-2B workers are in some
industries almost $4 to $5 lower than the average wage for those occupations, a situation that inevitably places downward pressure on U.S. worker wages. A 2008 review of seven occupations using H-2B workers by the Economic Policy Institute
(EPI) found that 98% of H-2B jobs were set below the mean (average) wage rate
and that 64% of jobs were set below 75% of the mean. EPI concluded that this
would clearly adversely affect the wages and working conditions of U.S. workers.7
Another EPI study looked at crab picking and landscaping industries in Maryland
and concluded that employers have been using the H-2B program as a way to degrade the wages of U.S. workers. 8 It found that H-2B crab-pickers and landscapers
were underpaid by $4.82 and $3.35 per hour, respectively.
DOL has also determined that the current H-2B wage rule degraded the wages
of U.S. workers, and a federal court ruled the 2008 wage rule invalid.9 In response,
DOL proposed a new rule that would better protect U.S. worker wages. As discussed
in Section IV, this new rule has been attacked by employers in the courts, and its
implementation has been effectively blocked by Congress, largely due to the efforts
of a few vocal senators and representatives from states with industries that rely
heavily on H-2B workers.
When an industry relies on guestworkers for the bulk of its workforce, wages tend
to fall. Guestworkers are generally unable to bargain for better wages and working
conditions. Over time, wages decline and the jobs become increasingly undesirable
to U.S. workers, creating even more of a demand for guestworkers.
B. Recruitment of U.S. Workers Is Weak at Best, and Often A Sham
Theoretically, employers are allowed to hire H-2B workers only when U.S. workers are not available for the job. In fact, the legal requirements for recruiting U.S.
workers are abysmally weak. In practice, recruiters and employers often pay only
lip service to those requirements, preferring to hire H-2B workersworkers who
will be effectively indentured to one employer during the term of their visa.
The legal requirements for recruiting U.S. workers are few. Employers are required to publish advertisements for two days in a newspaper. They must also contact the local union as a recruitment source if the employer is a party to a collective
bargaining agreement governing the job classification that is the subject of the H2B labor certification application. Employers must not reject U.S. applicants for the
job opportunity for which the labor certification is sought for reasons other than
ones that are lawful and job-related.
In practice, employers and recruiters make little effort in most instances to locate
U.S. workers. By the time they have decided to apply for H-2B workers, they have
typically made a business decision to employ those H-2B workers rather than to employ U.S. workers. In a recent report, the U.S. General Accounting Office (GAO) documented instances of recruiters actively counseling prospective employers on how to
make jobs unattractive or unavailable to U.S. workers.10 In one case reported by
the GAO, a Texas recruiter suggested conducting interviews before 7:00 a.m. and
requiring drug testing prior to the interview to weed out qualified American applicants. The recruiter also suggested that current employees be fired for cause or induced to quit prior to the employer filing a petition for U.S. workers to avoid arousing DOLs suspicion. Another recruiter offered to provide good excuses to help
weed out prospective U.S. workers who might apply for housekeeping jobs.11
H-2B workers are not eligible for unemployment compensation, making them
cheaper to employ than U.S. workers. Employers of H-2B workers also save by not
having to pay for benefits such as health care. In addition to the lower wages employers pay H-2B workers, they have powerful financial reasons to prefer foreign
workers to Americans. And they do.
The Palm Beach Post conducted an investigation into claims by Florida employers
that they had been unable to find U.S. workers to take hospitality jobs even in localities where the unemployment rate was well over 10% and higher still for unskilled
labor.12 In the Palm Beach Post investigations, an employer claimed to have worked
with the local government agency that helps Floridians file jobs, but that agency
denied any knowledge of the employer. That employer, Workaway Staffing, was approved to bring in 810 H-2B employers. Its president, William Mayville said H-2B
workers were necessary because you dont see Americans wanting to get into the
hospitality industry. 13
24
II. Guestworker Programs Are Inherently Abusive
When recruited to work in their home countries, workers are often forced to pay
enormous sums of money to obtain the right to be employed at the low-wage jobs
they seek in the United States. It is not unusual, for example, for a Guatemalan
worker to pay more than $5,000 in fees to obtain a job that may, even over time,
pay less than that sum. Workers from other countries may be required to pay substantially more than that. Asian workers have been known to pay as much as
$20,000 for a short-term job under the program. Unregulated foreign labor recruiters in home countries make false promises to workers about the H-2B jobs and
visas. Only after the workers have paid high recruiting fees and arrive in the
United States do they learn the less rosy truth.
Because most workers who seek H-2 jobs are indigent, they typically have to borrow the money at high interest rates. Guatemalan workers routinely tell us that
they have had to pay approximately 20% interest per month in order to raise the
needed sums. In addition, many workers have reported that they have been required to leave collateraloften the deed to a vehicle or a homein exchange for
the opportunity to obtain an H-2 visa. These requirements leave workers incredibly
vulnerable once they arrive in the United States.
Guestworkers labor in a system akin to indentured servitude. Because they are
permitted to work only for the employer who petitioned the government for them,
they are extremely susceptible to being exploited. If the employment situation is less
than ideal, the workers sole lawful recourse is to return to his or her country. Because most workers take out significant loans to travel to the United States for
these jobs, as a practical matter they are forced to remain and work for employers
even when they are subjected to shameful abuse.
Guestworkers routinely receive less pay than the law requires. In some industries
that rely upon guestworkers for the bulk of their workforceseafood processing and
forestry, for examplewage-and-hour violations are the norm, rather than the exception. These are not subtle violations of the law but the wholesale cheating of
workers. We have seen crews paid as little as $2 per hour, each worker cheated out
of hundreds of dollars per week. Because of their vulnerability, guestworkers are
unlikely to complain about these violations. Public wage and hour enforcement has
minimal practical impact because overstretched labor standards enforcement agencies can follow up on only a small fraction of violations.
Even when workers earn the minimum wage and overtime, they are often subject
to contractual violations that leave them in an equally bad situation. Workers report
again and again that they are simply lied to when they are recruited in their home
countries. Another common problem workers face is that they are brought into the
United States too early, when little work is available.
Similarly, employers often bring in far too many workers, gambling that they may
have more work to offer than they actually do. Because the employers are not generally paying the costs of recruitment, visas, and travel, they have little incentive
not to overstate their labor needs. Thus, in many circumstances, workers can wait
weeks or even months before they are offered the full-time work they were promised. Given that workers bring a heavy load of debt, that many must pay for their
housing, and that they cannot lawfully seek work elsewhere to supplement their
pay, they are often left in a desperate situation.
Guestworkers who are injured on the job face significant obstacles in accessing
the benefits to which they are entitled. First, employers routinely discourage workers from filing workers compensation claims. Because those employers control
whether the workers can remain in or return to the United States, workers feel
enormous pressure not to file such claims. Second, workers compensation is an ad
hoc, state-by-state system that is typically ill-prepared to deal with transnational
workers who are required to return to their home countries at the conclusion of
their visa period. As a practical matter, then, many guestworkers suffer serious injuries without any effective recourse.
The guestworker program appears to permit the systematic discrimination of
workers based on age, gender and national origin. At least one court has found that
age discrimination that takes place during the selection of workers outside the country is not actionable under U.S. laws.14 Thus, according to that court, employers
may evade the clear intent of Congress that they not discriminate in hiring by simply shipping their hiring operations outside the United Stateseven though all of
the work will be performed in the United States.
Many foreign recruiters have very clear rules based on age and gender for workers they will hire. One major Mexican recruiter openly declares that he will not hire
anyone over the age of 40. Many other recruiters refuse to hire women for field
work. Employers can shop for specific types of guestworkers over the Internet at
websites such as www.labormex.com, www.maslabor.com, www.mexicanworkers.biz,
25
or www.mexican-workers.com. One website advertises its Mexican recruits like
human commodities, touting Mexican guestworkers as people with a good old fashioned work ethic who are very friendly and easy to work with. 15
We have received repeated complaints of sexual harassment by women
guestworkers. Again, because workers are dependent upon their employer to remain
in, and return to, the United States, they are extremely reluctant to complain even
when confronted with serious abuse.
In order to guarantee that workers remain in their employ, many employers
refuse to provide workers access to their own identity documents, such as passports
and Social Security cards. This leaves workers feeling both trapped and fearful. We
have received repeated reports of even more serious document abuses: employers
threatening to destroy passports, employers actually ripping the visas from passports, and employers threatening to report workers to Immigration and Customs
Enforcement if those workers do not remain in their employment.
Even when employers do not overtly threaten deportation, workers live in constant fear that any bad act or complaint on their part will result in their being sent
home or not being rehired. Fear of retaliation is a deeply rooted problem in
guestworker programs. It is also a wholly warranted fear, since recruiters and employers hold such inordinate power over workers, deciding whether a worker can
continue working in the United States and whether he or she can return.
When the petitioner for workers is a labor recruiter or broker, rather than the
true employer, workers are often even more vulnerable to abuse. These brokers typically have no assets. In fact, they have no real jobs available because they generally only supply labor to employers. When these brokers are able to apply for and
obtain permission to import workers, it permits the few rights that workers have
to be vitiated in practice.
The lawsuit filed in March of 2008 against Signal International, LLC by workers
represented by the SPLC and others illustrates many of the abuses H-2B workers
face. In that case, hundreds of guestworkers from India, lured by false promises of
permanent
U.S. residency, paid tens of thousands of dollars each to obtain temporary jobs
at Gulf Coast shipyards only to find themselves subjected to forced labor and living
in overcrowded, guarded labor camps. When the workers attempted to assert their
federally-protected rights, they were violently retaliated against, and forcibly almost
deported to India.
III. Virtually No Legal Protections Exist for H-2B Workers
Although this hearing is to focus on the H-2B program in the United States, it
is important to understand that the few legal protections that exist for guestworkers
are applicable only to H-2A (agricultural) workers.
The H-2A Program
The H-2A program provides significant legal protections for foreign farmworkers.
Many of these safeguards are similar to those that existed under the widely discredited bracero program, which operated from 1942 until it was discontinued amid
human rights abuses in 1964. Unfortunately, far too many of the protectionsas in
the discredited bracero programexist only on paper.
Federal law and DOL regulations contain several provisions that are meant to
protect H-2A workers from exploitation as well as to ensure that U.S. workers are
shielded from the potential adverse impacts, such as the downward pressure on
wages, associated with the hiring of temporary foreign workers.
H-2A workers must be paid wages that are the highest of: (a) the local labor markets prevailing wage for a particular crop, as determined by the DOL and state
agencies; (b) the state or federal minimum wage; or (c) the adverse effect wage
rate.
H-2A workers also are legally entitled to:
Receive at least three-fourths of the total hours promised in the contract, which
states the period of employment promised (the three-quarters guarantee);
Receive free housing in good condition and meals or access to a cooking facility
for the period of the contract;
Receive workers compensation benefits for medical costs and payment for lost
time from work and for any permanent injury;
Be reimbursed for the cost of travel from the workers home to the job as soon
as the worker finishes 50% of the contract period. The expenses include the cost of
an airline or bus ticket and food during the trip. If the guestworker stays on the
job until the end of the contract or is terminated without cause, the employer must
pay transportation and subsistence costs for returning home; and
26
Be eligible for federally funded legal services for matters related to their employment as H-2A workers.
To protect U.S. workers in competition with H-2A workers, employers must abide
by what is known as the fifty percent rule. This rule specifies that an H-2A employer must hire any qualified U.S. worker who applies for a job prior to the beginning of the second half of the season for which foreign workers are hired.
The H-2B Program
The basic legal protections historically afforded to H-2A workers have never applied to guestworkers under the H-2B program.
Though the H-2B program was created two decades ago by the Immigration Reform and Control Act (IRCA) of 1986, prior to 2008, DOL had not promulgated substantive labor regulations for the H-2B program.16 As discussed in Section IV below,
DOL promulgated new regulations in 2011 and 2012 that better protect workers,
but those regulations have been enjoined by the courts and subject to Congressional
action prohibiting their enforcement.
While the employer is obligated to offer full-time employment (currently defined
as only 30 hours per week) that pays at least the prevailing wage rate, none of the
other substantive regulatory protections of the H-2A program apply to H-2B workers. There is no free housing. There is no access to legal services. There is no threequarters guarantee. And the H-2B regulations do not require an employer to pay
the workers transportation to the United States.
Although H-2B workers are in the United States legally, they are generally ineligible for federally funded legal services because of their visa status. As a result,
most H-2B workers have no access to lawyers or information about their legal rights
at all. Because most do not speak English and are extremely isolated, it is unrealistic to expect that they would be able to take action to enforce their own legal
rights.
Typically, workers will make complaints only once their work is finished or if they
are so severely injured that they can no longer work. They quite rationally weigh
the costs of reporting contract violations or dangerous working conditions against
the potential benefits.
Historically farmworkers and other low-wage workers have benefited greatly by
organizing unions to engage in collective bargaining, but guestworkers fears of retaliation present an overwhelming obstacle to organizing unions in occupations
where guestworkers are dominant.
IV. DOLs Efforts to Better Protect U.S. and H-2B Workers Have Been Stymied by
Employers Seeking to Maintain the H-2B Program as a Source of Cheap, Unregulated Labor
In 2011 and 2012, DOL proposed new regulations for the H-2B program that provide increased protections for U.S. and H-2B workers. These regulations would better shield U.S. worker wages from the depressive effect of foreign labor, preserve
U.S. workers job opportunities, and protect H-2B workers from the severe exploitation that is so prevalent in the program. Unfortunately, due to efforts by business
interest groups, H-2B employers, and the Chamber of Commerce none of these critical protections have ever been implemented.
A. The 2008 H-2B Regulations
Prior to 2008, DOL had not promulgated regulations that provided substantive
labor protections for H-2B workers and their U.S. worker counterparts.17 In December 2008, President Bushs Department of Labor published midnight regulations
for the H-2B program.18 These regulations provided only minimal protections for H2B workers and lacked many of the fundamental legal protections afforded to H-2A
workers, such as reimbursement of the H-2B workers transportation costs to the
United States and the three-quarters guarantee. The 2008 regulations also established a methodology for calculating the wage that employers must pay to their H2B workers (the prevailing wage) that causes the very depressive effect on U.S.
worker wages Congress intended to avoid in requiring the H-2B prevailing wage.
In issuing the 2008 regulations, DOL failed to consider many of the comments
presented by migrant worker advocacy groups. In response, shortly after the rules
were implemented in January 2009, a coalition of H-2B workers, U.S. workers, and
worker advocacy organizations filed a lawsuit in federal court (CATA v. Solis) challenging the 2008 H-2B rules, alleging that DOL promulgated the rules in violation
of the Administrative Procedure Act (APA).19 On August 30, 2010, the court in the
Eastern District of Pennsylvania granted partial summary judgment for the plaintiffs, ruling that several of the Bush Administration DOLs H-2B regulations violated the APA. In order to avoid a regulatory gap, however, the court chose not to
27
vacate the 2008 rules. Rather, it ordered DOL to promptly promulgate new rules
in compliance with the APA.
Nearly three years after the courts order, however, the invalidated 2008 regulations still govern the H-2B program today.
B. The 2011 H-2B Wage Rule
On January 19, 2011, DOL issued a new prevailing wage rule for the H-2B program (2011 wage rule) in response to the CATA court order, but also because DOL
found the 2008 wage rule was adversely affecting the wages of U.S. workers.20
Given that DOLs statutory and regulatory mandate is to certify that an employers
importation of H-2B workers will not adversely affect the wages and working conditions of U.S. workers, DOL rightfully sought to replace a wage rule that was doing
exactly the opposite.21 Indeed, DOL found that the 2008 wage rule sets a wage
below what the average similarly employed worker is paid, 22 and, as a result,
leads to underpayment of wages in nearly 96% of cases.23 In practical terms, this
means that U.S. workers would be less likely to take those jobs or would be required
to accept a job at a wage well below what the market has determined is the prevailing wage for that occupation.
Shortly before the wage rule was set to go into effect in September 2011, H-2B
employers and trade associations representing H-2B employers filed lawsuits in federal courts in Florida and Louisiana (later transferred to Pennsylvania) challenging
the rule. The lawsuits both allege that DOL issued the rule in violation of the APA
and the Regulatory Flexibility Act (RFA) and DOL lacks authority from Congress
to issue any legislative rules for the H-2B program.24 H-2B employers also galvanized a group of vocal Senators and Representatives from states with industries
that rely heavily on H-2B workers to ensure the new wage rule would not be implemented. This effort led to Congress passing a series of appropriations bans and continuing resolutions that effectively blocked the 2011 wage rule by prohibiting DOL
from using funds towards its implementation.25
In August 2012, the Louisiana Forestry court granted DOLs motion for summary
judgment, upholding the 2011 wage rule and ruling that DOL has authority to issue
rules for the H-2B program.26 Yet, because the current Congressional ban on the
new wage rules implementation is in effect until March 27, 2013, and employers
have appealed the lower courts decision to the Third Circuit Court of Appeals, the
rule is still not in effect and likely will not be implemented in the near future. As
a result, a wage rule that directly contravenes its purposeto protect U.S. worker
wagesis still operative today, resulting in the gross underpayment of wages to
hundreds of thousands of H-2B and U.S. workers with no end in sight.
C. The 2012 Comprehensive H-2B Rule
On February 21, 2012, DOL published new comprehensive regulations for the H2B program (2012 Final Rule) that would provide much needed protections to U.S.
and H-2B workers. The 2012 Final Rule requires employers seeking to import H2B workers to first engage in more protracted and aggressive recruitment of U.S.
workers, such as posting the open jobs on a national job registry and giving U.S.
workers more time to apply for open positions. The new regulations also prevent the
exploitation of H-2B workers by providing important protections to prevent human
trafficking, debt servitude, fraud, and charging of exorbitant fees by overseas recruiters. Unlike the 2011 wage rule, the majority of the 2012 Final Rules provisions
will have little or no economic impact on employers that participate in the program.
In April 2012, just days before the new regulations were scheduled to go into effect, business interest groups, including the Chamber of Commerce, and a few H2B employers sought and won a nationwide injunction in federal court in Florida
that blocked DOL from implementing the 2012 Final Rule.27 Similar to the employers challenges to the 2011 wage rule, this lawsuit alleges that DOL did not comply
with the APA and RFA when issuing the 2012 Final Rule and that DOL does not
have authority to issue any rules for the H-2B program. DOL appealed the injunction to the Eleventh Circuit Court of Appeals, and several amici submitted briefs
in support of DOLs rulemaking authority and the new rules, including Representative Peter DeFazio and Senator Jeffrey A. Merkley, and labor unions UNITE HERE
and PCUN. The Eleventh Circuits decision is pending. In the meantime, as a result
of the district courts injunction, the critical worker protections provided by the 2012
Final Rule did not go into effect as planned and may never go into effect.
While the employer-driven attacks on DOLs new H-2B regulations have completely derailed the implementation of long overdue protections for U.S. and H-2B
workers, the real implication of this litigation is more concerning. The gravamen of
the employers claims in all three lawsuits is that DOL lacks authority to issue any
regulations for the H-2B program. Given that DOL has been regulating the H-2
28
guestworker programs for over forty years, the employers sudden challenge to
DOLs authority is particularly transparent. Indeed, not until DOL proposed a wage
rule that will lead to fair wages that better approximate the market wage for U.S.
and H-2B workers across the country did DOLs rulemaking authority become an
issue for the employers. Clearly, the H-2B employers do not just want less onerous
regulationthey want no regulation or regulationslike the 2008 Bush-era rules
that overwhelmingly favor employers, even if those regulations do not adequately
effectuate the protections for U.S. workers that Congress intended when creating
the H-2B program.
V. Substantial Changes Are Necessary to Reform These Programs
The SPLC report Close to Slavery offers detailed proposals for reform of the current guestworker programs. The recurring themes of those detailed recommendations are that federal laws and regulations protecting guestworkers from abuse
must be strengthened; federal agency enforcement of guestworker programs must be
strengthened; and Congress must provide guestworkers with meaningful access to
the courts.
The SPLC recommends that Congress take the following actions:
Congress must finally allow the protective regulations promulgated by DOL in
2011 and 2012 to go into effect. In doing so, it should also make clear that DOL
does have rulemaking authority under the H-2B program.
Congress should enact protections to regulate the recruitment of workers.
Congress should make clear that the systematic discrimination entrenched in this
program is unlawful. Congress should regulate recruitment costs and should make
employers responsible for the actions of recruiters in their employ. Any such regulation must make the employer who selects a recruiter responsible for the actions of
that recruiter. Doing so is the only effective means of avoiding the severe abuses
that routinely occur in recruitment. Holding employers responsible for their agents
actions is not unfair: if those hires were made in the U.S., there is no doubt that
the employers would be lawfully responsible for their recruiters promises and actions. Making the rules the same for those who recruit in other countries is fair,
and it is the only way to prevent systematic abuse.
Congress should also make H-2B workers eligible for federally funded legal
services. There is simply no reason that these workerswho have come to the U.S.
under the auspices of this government sponsored planshould be excluded from eligibility.
Congress should make the H-2B visa fully portable to other employers, at least
under some circumstances. For example, at a minimum, Congress should create a
means by which workers may obtain visas when they need to remain in or return
to the United States to enforce their rights. Employers currently control workers
right to be here. That means when workers bring suit, or file a workers compensation claim, the employers have extraordinary control over that process.
Congress should provide a pathway to permanent residency for guestworkers
who would choose to become full members of our community.
Enforcement should include a private federal right of action to enforce workers
rights under the H-2B contract.
Lastly, Congress should provide strong oversight of the H-2B program. Congress
should hold additional hearings on this issue related to the administration of the
guestworker programs.
A review of available evidence would amply demonstrate that this program has
led to the shameful abuse of H-2B workers and has put downward pressure on the
wages and working conditions offered to U.S. workers. Congress must not allow that
abuse to continue.
Conclusion
The H-2B program as it currently exists lacks worker protections and any real
means to enforce the few protections that do exist. Vulnerable workers desperately
need Congress to take the lead in demanding reform. The goal of this subcommittee
should be to make effective protections for the wages and working conditions of
American workers that Congress intended in creating the H-2 program. Continuation or expansion of the H-2B program thwarts that intention.
Thank you again for the opportunity to testify. I welcome your questions.
ENDNOTES
1 Close
to Slavery was originally released in 2007, but was updated and re-released in 2013.
2 Nonimmigrant
Visas Issued by Classification FY 2008-2012, available at http://
www.travel.state.gov/pdf/FY12AnnualReport-TableXVIB.pdf
29
3 Bureau of Labor Statistics, Economic News Release (2012), available at http://www.bls.gov/
news.release/empsit.t01.htm.
4 8 U.S.C. 1101(a)(15)(H)(ii)(b); 8 C.F.R. 214.2(h)(6)(iv)(A); 20 CFR Part 655.
5 See Close to Slavery, Chapter 5.
6 See Congressional Budget Justification, Wage and Hour Division, FY 2013, available at
http://222.dol.gov/dol/budget/2013/PDF/CBJ-2013-V2-09.pdf.
7 Denise Velez, Wages for H-2B Workers Set Lower than the Prevailing Wage, available at
http://www.epi.org/publication/webfeaturessnapshots20080813/ (last visited Aug. 13,
2008).
8 Daniel Costa, H-2B Employers and their Congressional Allies Are Fighting Hard to Keep
Wages Low for Immigrant and American Workers, available at http://www.epi.org/publication/2b-employers-congressional-allies-fighting/ (last visited Mar. 11, 2013).
9 See Comite de Apoyo a los Trabajadores Agrcolas, et al., v. Solis, et al., No. 09-240, 2010
WL 3431761, at *2 (E.D. Pa. Aug. 30, 2010) (CATA); 76 Fed. Reg. 3452 (Jan. 19, 2011).
10 U.S. General Accounting Office, Closed Civil and Criminal Cases Illustrate Instances of H2B Workers Being Targets of Fraud and Abuse, available at http://www.gao.gov/products/
GAO-10-1053, September 30, 2010.
11 Supra n.10, at 11.
12 John Lantigua, Use of Guest Workers in Palm Beach County Draws Fire Palm Beach
Post, July 11, 2011.
13 Id.
14 Reyes-Gaona v. NCGA, 250 F.3d 861 (4th Cir. 2001). For a discussion of this case, see Ruhe
C. Wadud, Note: Allowing Employers to Discriminate in the Hiring Process Under the Age Discrimination in Employment Act: The Case of Reyes-Gaona, 27 N.C.J. Intl Law & Com. Reg. 335
(2001).
15 See, e.g., Mexican Workers, www.mexican-workers.com/why-foreign-workers.htm (last visited Jan. 28, 2013).
16 See Martinez v. Reich, 934 F. Supp. 232 (D. Tex. 1996)
17 Prior to 2008, the procedures governing certification for an H-2B visa were established by
internal DOL memoranda (General Administrative Letter 1-95), rather than regulation.
18 77 Fed. Reg. 78,020-01 (Dec. 19, 2008).
19 See CATA, 2010 WL 3431761 at *2, supra n. 8.
20 76 Fed. Reg. 3452 (Jan. 19, 2011).
21 8 U.S.C. 1101(a)(15)(H)(ii); 8 U.S.C. 1184(c)(1); 8 C.F.R. 214.2(h)(6)(iv)(A).
22 Id.; see also 75 Fed. Reg. 61,578, 61,580-81 (Oct. 5, 2010) (2010 NPRM).
23 76 Fed. Reg. at 3463.
24 See Louisiana Forestry Assn, Inc., et al. v. Solis, No. 11-01623 (W.D. La. Sept. 7, 2011);
Bayou Lawn & Landscape Servs., et al. v. Solis, 3:11 cv445 (N.D. Fla. Filed Sept. 21, 2011).
25 Continuing Appropriations Resolution, 2013, H.J. Res. 117, Public Law No. 112-175 (Sept.
28, 2012); Consolidated and Further Continuing Appropriations Act, 2012, Pub. L. 112-55, Div.
B, Title V, 546 (Nov. 18, 2011); Consolidated Appropriations Act of 2012, Pub. L. No.112-74,
Div. F, Title I 110, 125 Stat. 786 (2011).
26 See Louisiana Forestry Assn, Inc., et al. v. Solis, No. 11-7687, 2012 WL 3562451 (Aug. 20,
2012).
27 Bayou Lawn & Landscape Servs., et al. v. Solis, et al., No. 3:12-cv-00183 (N.D. Fla. filed
Apr. 16, 2012).
Chairman WALBERG. Ms. Bauer, thank you, as well.

I recognize Mr. Musser for your 5 minutes of testimony.
STATEMENT OF DAN MUSSER, PRESIDENT, GRAND HOTEL
Mr. MUSSER. Thank you, Mr. Chairman and members of the subcommittee. I appreciate the invitation today to talk about the critical need for foreign temporary seasonal H-2B worker program for
Grand Hotel and other seasonal businesses throughout the country.
My name is Dan Musser. I am president at Grand Hotel on
Mackinac Island, Michigan. I am the third generation in my family
to own and operate this historic, seasonal, 385-room summer resort.
We are known nationally and internationally as the worlds largest summer hotel. We are known for the beauty of our location on
Mackinac Island, our dramatic 660-foot front porch that the chairman eloquently discussed earlier, and more importantly, our
friendly and unique hospitality.
Our exceptional service is widely recognized by many national
rating guides. For example, National Geographic Traveler selected
us as one of 150 properties thatwith location-inspired architec-
30
ture, ambiance, amenities, eco-stewardship, and an ethic of giving
back to the community.
Grand Hotel is the largest employer of U.S. workers on Mackinac
Island. We employ 60 U.S. workers annually on a year-round basis
and 260 on a seasonal basis.
For many decades Grand Hotels entire staff had U.S. workers.
Increasing opportunities for year-round hospitality workers has
made it impossible to fill all of our positions with ready, willing,
and able American workers. Without the H-2B seasonal temporary
workers we employ to supplement our U.S. workforce we would
eventually not be in business.
Since Grand Hotel first opened in 1887 it has been a continuing
challenge to find a stable, dependable workforce to fill the 620 jobs
required to maintain the high level of service for which we are
known. We are only open 6 months a year. We are in an isolated
location 300 miles north of Detroit.
Operating year-round is not an option. There is no good way to
get to our island in the winter and very little to do there if you
were able to get across the frozen lake.
We are and always have been committed to staffing Grand Hotel
with U.S. workers. Each year we take a number of steps to recruit
U.S. workers for Grand Hotel, including running ads in major papers in Michigan, the Great Lakes region; advertising in seasonal
resort areas that dovetail with ours; attending as many job fairs;
visiting culinary institutes around the country; and partnering
with Job Corps centers.
We are able to hire some college students, but increased summer
enrichment opportunities and the extended school year at many
colleges preclude them from remaining with us for the entire season.
We have also tried several innovative programs, including a service academy through which we worked with the state of Michigan
and the Educational Institute of the American Hotel and Lodging
Association, where we hired unemployed Michigan citizens, guaranteed them a job the next summer, provided them college-level
hospitality courses throughout the summer. We found that after
helping them find jobs in resorts in another part of the country in
the winter and the additional college-level classes that they did not
return to us.
While these programs have not provided us the workforce we
need to provide Grand Hotels service, we continue and will continue to do everything in our power to find, recruit, and maintain
an American labor force.
About 40 years ago Grand Hotel began to look to foreign workers
to fill positions which we were finding no U.S. citizens were available. Many of our H-2B workersfor example, those from Jamaicahold seasonal hospitality jobs in their home countries.
Some of them return year after year to Grand Hotel because of the
pay and working conditions that we offer to all of our staff.
Most of the subsidizing housing we provide to our staff are single
roomssome with private baths, some with shared baths, and others are dormitory style. But we are proud of the condition of our
employee housing. And over the last 3 years we have spent in excess of $1 million on improvements. We provide three meals a day
31
in our employee cafeteria and assist all of our staff in many ways,
including through the Mackinac Island Community Foundation.
We are one of 70 Northern Michigan resorts and hotels that utilize temporary seasonal foreign workers on the H-2B visa for specific jobs. Our workforce during the summer is made up of our U.S.
workers and 300 or so temporary foreign workers.
Our American jobs depend on our H-2B workers. It would be extremely difficult if not impossible for us to continue to operate successfully without the H-2B worker. They are the lifeblood of our
seasonal business.
The potential closure of Grand Hotel would have a devastating
impact on Mackinac Island, Northern Michigan, and the tourism
industry in the state of Michigan. For example, in the last 15 years
we have reinvested in excess of $32 million in capital expenditures
that have created jobs for hundreds of Michigan workers.
Grand Hotel is not that much different from the thousands of
small and seasonal businesses throughout the U.S. who have been
forced to turn to the H-2B program as a result of lack of available
Americans willing and able to work in temporary seasonal positions. Like all business, Grand Hotel suffered during the recent recession. The uncertainty about whether and when the H-2B visa
program could be dramatically changed by the accommodation of
the recent Department of Labor rules and H-2B wage rates and
new H-2B programmatic rules have created an untenable climate
for business planning.
Comprehensive immigration reform must maintain a viable nonagricultural seasonal worker program along the lines of existing H2B program. The program should maintain current protections for
Americans and H-2B workers and not impose costly burdensome
requirements on employers who use the program. The federal government should enforce the existing protections.
The number of participants in the program should be marketbased so it can fluctuate based on need and the returning worker
exemption should be reinstated.
Comprehensive immigration reform should provide sufficient resources for federal agencies to process H-2B applications in a timely manner.
Thank you, Mr. Chairman.
[The statement of Mr. Musser follows:]
Prepared Statement of R. Daniel Musser III, President,
Grand Hotel, Mackinac Island, MI
Mr. Chairman and Members of the Subcommittee, I appreciate your invitation to
testify today about the critical need for a foreign temporary, seasonal H-2B worker
program for Grand Hotel and other seasonal businesses throughout the U.S. My
name is Dan Musser, I am President of Grand Hotel on Mackinac Island, Michigan.
I am the third generation of my family to own and operate this historic, seasonal,
385-room summer resort. This is the 80th year that the hotel has been under our
stewardship and on July 10, 2012 we celebrated our 125th birthday.
Grand Hotel is known nationally and internationally as the worlds largest summer hotel. We are known for the beauty of our location on Mackinac Island, for our
dramatic 660-foot front porch and, more importantly, for our friendly and unique
hospitality.
Our exceptional service is widely recognized by many national rating guides; I
have attached a brief listing of recent awards that reflect our commitment to quality.
To give just a few examples:
32
The April 2008 issue of National Geographic Traveler selected us as one of 150
properties in the U.S., Canada, Mexico and the Caribbean Region with location inspired architecture, ambiance, and amenities, eco-stewardship, and an ethic of giving back to the community.
Travel & Leisure magazine annually lists us as one of the 500 best hotels in
the world and their readers selected us as one of the top 50 family friendly resorts
in the U.S. and Canada.
Conde Nast Traveler rated us one of the top 100 resorts in the United States
and the number 4 northern resort in their list of top 125 golf resorts in the United
States.
In honor of our anniversary, Michigan Governor Rick Snyder proclaimed July
8-14 Grand Hotel week in the state of Michigan noting our designation as a National Historic Landmark by the U.S. Department of Interior and the world-class
hospitality the Musser family and Grand Hotel has provided over the past 125
years.
Grand Hotel is the largest employer of U.S. workers on Mackinac Island. We employ 60 U.S. workers annually on a year round basis and 260 on a seasonal basis.
For many decades, Grand Hotels entire staff was U.S. workers. Increasing opportunities for year-round hospitality workers and other factors have made it impossible
to fill all of our positions with ready, willing, and able American workers. Without
the H-2B seasonal temporary workers we employ to supplement our U.S. work force,
we eventually would not be in business.
Since Grand Hotel first opened in 1887, it has been a continuing challenge to find
a stable, dependable work force to fill the 620 jobs required to maintain the high
level of service for which we are known. The fact we are open only six months, our
isolated location 300 miles north of Detroit, and other factors make it difficult to
develop a work force needed to provide Grand Hotel level hospitality.
Operating year round is not an option. We are a seasonal summer hotel. There
is no good way to get to our island in the winter and very little to do there if you
were able to get across the frozen lake.
We are and always have been committed to staffing Grand Hotel with U.S. workers. Each year we take a number of steps to recruit U.S. workers for Grand Hotel.
We run ads in major papers in Michigan and the Great Lakes region.
We advertise in seasonal resort areas that dovetail with ours such as ski resorts
in Colorado and Utah and warm weather resorts such as Florida and Arizona.
We attend as many job fairs in as many colleges and universities in Michigan
and the Great Lakes region as we can.
We visit culinary institutions around the country.
We attend Michigan Works job fairs.
We list jobs on major Internet sites.
We promote on major media outlets in Michigan (radio, print, electronics)
We have partnered with Job Corps Centers in Flint, Grand Rapids and Detroit,
Michigan and Golconda, Illinois.
We are able to hire some college students, but increased opportunities for summer
educational and enrichment activities for college students has reduced the pool of
available students. Further, most college students school schedules preclude them
from remaining with us for the entire season, which runs from April through midNovember.
We have also tried several innovative programs. We created a service academy
through which we worked with the Michigan Employment Security Commission to
find unemployed Michigan Citizens who expressed an interest in the hospitality
field. We provided employment for the summer and rotated them through different
departments in the Hotel during the course of the season. They also received college-level classroom instruction provided by the Educational Institute of the American Hotel and Lodging Association.
At the end of the season, they received accreditation from the Institute, a guaranteed job the next summer with us, and with the States assistance found winter jobs
at various resorts in Colorado, Utah, Arizona and Florida. Unfortunately for us,
those resorts offered year-round employment. We found that after we had provided
them an education and experience in the hospitality industry and then found positions for them with other resorts in other parts of the country that offered yearround employment, we had virtually no returning graduates.
We even tried a program where we recruited workers from homeless shelters in
metropolitan areas in southern Michigan. That was not successful.
We had a somewhat successful program with the State with individuals with certain limited physical and mental disabilities. We hired a qualified full-time supervisor specially trained to work with and live with these individuals to ensure integration to our working community. In recent years, the States role has diminished
33
in this regard and, therefore, our program as well. I am pleased to say that our program enabled six of these individuals to become capable of living on their own and
several worked with us for over 20 years.
While these programs have not provided us with the work force we need, we continue and will continue to do everything in our power to find, recruit and retain as
many U.S. workers as possible. In the meantime, the quality of service we provide
requires that we supplement our professional, trained and dependable U.S. work
force.
For many years, we recruited workers from Florida. But as Florida turned into
a year round vacation destination, those workers no longer were available. The situation was particularly critical in the hotel dining room, which is a key part of hotel
operations.
About 40 years ago, Grand Hotel began to look to foreign workers to fill positions
for which we could not, despite extensive efforts, find U.S. workers. Our H-2B workers come from several different countries. Many of these workers hold seasonal hospitality jobs in their home countries. For example, the Jamaican tourist season
dovetails perfectly with ours and Jamaica is an important source of H-2B workers
for us. Some of them return year after year to Grand Hotel because of the pay and
working conditions we offer to all staff, both domestic and foreign. In 2012, of the
280 H-2B staff that worked with us, approximately 250 or 90% were returning staff.
Under federal law, our wage rates are approved by both the Michigan Employment Security Commission and the U.S. Department of Labor. Our wage rates are
based on Detroit-area wages.
We provide a variety of housing in communities on the island that we subsidize
for all staff. Most are single rooms; some with private baths; some with shared
baths with one other room and some dormitory style. We are proud of the condition
of our employee housing. In the past 3 years, we have spent in excess of $1.1 million
on improvements. In addition to housing, we also provide three meals a day in our
employee cafeteria. It is important to note that our H-2B workers enjoy workers
compensation, just as our American workers. We also assist our U.S. and H-2B
workers in many ways. For example, in September of 1988, Hurricane Gilbert
caused $4 billion of damages to homes and crops in Jamaica. It is estimated that
80% of the homes on the Island lost their roofs. Several staff members returned to
Jamaica early to take care of their property and family and also report back to staff
members who stayed on Mackinac. Grand Hotel gathered food and supplies and sent
a trailer of these supplies to Jamaica to assist with the clean up.
In November of 2006, shortly after returning home to Jamaica, 11 year Waiter
Garfield Slowly was seriously injured in an automobile accident and his child was
killed in the same accident. News of the tragedy traveled quickly to Mackinac and
Grand Hotel partnered with the Mackinac Island Community Foundation to provide
monetary help and medical supplies.
$19,500 in aid was sent to support Garfield and his family over a 4-year period.
This is one of many partnerships with the Mackinac Island Community Foundation.
My wife, Marlee, was on the founding Board of Trustees for the Foundation and I
still serve on the Board. Grand Hotel provides office space free of charge and also
paid the Directors salary and benefits for 15 years. The Foundation is a resource
for all staff, U.S. and H-2B workers, and provides financial assistance for medical
and family emergencies, natural disasters and serious illness.
Grand Hotel makes special efforts to help its workers in other ways. Each year,
all staff is allowed to order bulk food items and cleaning supplies through the hotel
at a great discount.
These items are shipped within the U.S. or to their home countries and used to
support their extended families for the entire year. At the beginning of each season,
clothing donations are accepted from staff and Mackinac Island residents and redistributed to the staff coming to work in April. Much of our staff comes from a climate
where warm clothing and boots are not readily accessible. This program has provided our staff with free clothing and boots for the past 8 years.
Grand Hotel also conducts activities to celebrate our multicultural staff. Each
year we recognize Mexican, Jamaican and Filipino Independence Days through activities in our Employee Cafeteria and through the entertainment offered in our outside restaurants. We also help to sponsor football, soccer and cricket matches for
the staff to participate in and challenge each other. The staff appreciates the recognition and everyone appreciates the opportunity to learn more about the culture
and customs of their co-workers.
We are one of 70 northern Michigan resorts and hotels that utilize temporary,
seasonal foreign workers on H-2B visas for specific jobs. Our workforce during the
summer is made up of our U.S. workers and 300 or so temporary foreign workers.
Our American jobs depend on our H-2B workers. It would be extremely difficult, if
34
not impossible, for us to continue to operate successfully without H-2B workers
they are the lifeblood of our seasonal business.
The potential closure of Grand Hotel would have a devastating impact on Mackinac Island, Northern Michigan and the tourist industry in general.
Some relevant facts to consider are:
Grand Hotel has reinvested in excess of $32 million in the past 15 years on capital expenditures. All construction was performed by Michigan contractors.
During the past 15 years, an additional $25 million was spent on normal and
major repairs to the Hotels properties.
On average, 600 individuals are employed at the Hotel each year, with an annual payroll in excess of $14 million.
Grand Hotel spends in excess of $1.4 million annually for State and Federal unemployment and FICA taxes.
The Hotel spends in excess of $1.4 million annually in Michigan for professional
services such as advertising, accounting and other outside services.
Grand Hotel is not much different from the thousands of small and seasonal businesses throughout the U.S. who have been forced to turn to the H-2B program as
a result of a lack of available Americans willing and able to work in temporary seasonal positions. And it is not just the hotel and resort industry that needs these
workers.
Nearly every corner of the country uses seasonal temporary workers. The industries include:
Seafood processors, shrimpers, crabbers, and fishermen throughout the Gulf,
Carolinas, Alaska, Northwest and Mid-Atlantic states;
Hotels, restaurants, ski resorts and other important tourist destinations
throughout New England, the Mid-West and the Rockies;
Quarries from New England to Colorado;
National Parks, including Grand Canyon, Sequoia, Yosemite and others;
Forest industry in New England and the Southeast;
Theme parks and swimming pools in virtually every state; and
Landscapers and landscape contractors across America.
Each year these employers go through great expense and trouble to follow the
law. The H-2B process consists of applications to four separate Government agencies
(State Workforce Agency, U.S. Department of Labor, U.S. Department of Homeland
Security and U.S. Department of State), legal fees, Government filing fees and many
other expenses. Employers pay wages at levels that have been certified by the U.S.
Government to be high enough so that they will not adversely affect the wages of
similarly employed Americans. Employers are obligated to pay transportation expenses to and from the property (according to DOL guidance), and they must comply
with the myriad rules and regulations that govern the worksite of U.S. and foreign
workers alike.
For seasonal employers, the H-2B returning worker exemption worked well. Employers still willingly searched high and low for every American they could find. But
when they could not find Americans, the fact that they could turn to workers who
have worked for them in the past ensured that they could stay in business. Most
importantly, since returning workers had already undergone extensive background
security checks (and have to undergo similar cheeks each time they apply to enter
the U.S.), employers could feel confident that they have helped protect the security
of our homeland. Moreover, in deciding to return to work with the same seasonal
employer, these H-2B workers signaled that they were pleased with their working
conditions and the wages they were paid. The returning worker exemption was one
of those rare win-win-win-win situations: a win for workers (American and foreign); a win for employers; a win for the United States of America; and a win for
the communities we serve. The returning worker exemption from the annual cap on
H-2B visas should be re-instated.
Like all businesses, Grand Hotel suffered during the recent recession. Our recovery has been threatened by the recent U.S. Department of Labor rules on H-2B
wage rates and new H-2B programmatic rules. Fortunately, Congress and the federal courts have so far blocked implementation of these rules, but the uncertainty
about whether and when the H-2B visa program could be dramatically changed by
Administration action creates an untenable climate for business planning.
Grand Hotel did not comment on the Department of Labor (DOL) proposed wage
rule issued on October 5, 2010. Although the proposed rule was of concern to us,
we determined that we could survive with the new rule. DOL issued the final rule
on January 19, 2011. It artificially increases H-2B hourly wages by more than 50%.
For many seasonal employers who operate on thin profit margins, such a dramatic
increase in labor costs will drive them out of business or into bankruptcy. This rule
was slated to go into effect last year, but DOL moved the implementation date to
35
March 27, 2013 after Congress prohibited DOL from spending any appropriations
funding to implement the rule.
According to DOLs own estimates, the rule will increase H-2B wages by the following:
Landscaping services, $4.32;
Janitorial services, $5.81;
Food services and drinking places, $2.59;
Amusement, gambling, and recreation, $6.61;
Construction, $9.12; and
Forestry support, $1.23.
The actual cost to H-2B users is far greater than DOLs estimates because DOL
does not account for labor increases for similarly employed American workers or
more experienced American workers whose pay should reflect the greater skill or
experience level and be proportional to the hourly wage earned by lesser skilled
workers. It also does not include additional payroll costs, workers compensation insurance, overtime costs and other associated increases.
On February 21, 2012, DOL issued a final H-2B program rule that would make
the H-2B program more complicated for small seasonal employers. The combination
of the H-2B wage rule and the H-2B program rule will make the H-2B program virtually unusable for many seasonal businesses. The rules are based on the mistaken
assumption that the H-2B program is fraught with abuse. While this is not the case,
DOL and the Department of Homeland Security already have significant authority
to enforce against any employers that are not meeting their obligations to their H2B and U.S. workers. The DOL is currently enjoined by a federal court from implementing the program rule.
I will highlight a few of the provisions in the Department of Labor programmatic
rule that are particularly burdensome:
Additional Recruitment Time
Increasing the amount of time during which U.S. workers must be recruited from
ten (10) days before filing the ETA-9142 to twenty-one (21) days before the H-2B
employers need for the worker, is too short.
The end of the recruitment period must leave more time to shift from the use of
human resources manpower hours for recruitment and compliance with H-2B rules
to the use of manpower hours to actually open the business. Typically, Grand Hotels goal in recruiting H-2B workers (to supplement the employment of the U.S.
workers we are able to recruit to fill various positions in our organization including
housekeepers, wait staff, kitchen helpers, and bellhops) is to have the majority of
recruitment completed by March 1. Our plan is to have workers begin to arrive at
the Hotel on April 1. The Hotel opens on May 1. We need time between completion
of the long and expensive hiring and recruitment process and the arrival of staff
to begin the operational side of our business, that is, to prepare training plans,
housing, uniforms, and scheduling. Our guests expect to experience Grand Hotels
high level of service on our opening day.
Areas of Substantial Unemployment Definition
An ASU is defined in the rules as a contiguous area with a population of at least
10,000 in which there is an average unemployment rate equal to or exceeding 6.5%
for the twelve (12) months preceding the determination of such areas made by the
ETA. We believe that the benchmark for an ASU, for purposes of requiring additional recruitment, should not be based on the annual unemployment rate, but the
timeframe of need. For example, Grand Hotel is located in Mackinac County, which
has an annual unemployment rate of 11.5%, but this is to be expected in a summer
vacation area when during the summer months the unemployment rate for all but
one month is lower than the national average as delineated below:
Annual2012
January ...........................................................................................................................................................................
February ..........................................................................................................................................................................
March ..............................................................................................................................................................................
April ................................................................................................................................................................................
May .................................................................................................................................................................................
June ................................................................................................................................................................................
July ..................................................................................................................................................................................
August ............................................................................................................................................................................
September .......................................................................................................................................................................
October ...........................................................................................................................................................................
November ........................................................................................................................................................................
December ........................................................................................................................................................................
11.5%
23%
23.5%
21.6%
14.1%
6.1%
4.5%
4.2%
3.8%
3.6%
4.3%
11.9%
17.9%
36
We also believe that the ASU threshold should not be an arbitrary figure of 6.5%,
but should be based on the national employment rate, which is currently 7.7%.
Additional Recruitment Required for an ASU is Unreasonable and may be
Counterproductive
The DOLs regulation would require employers to engage in additional recruitment activities, including but not limited to contacting community-based organizations in ASUs to ensure that unemployed U.S. workers, who may be capable of (and
desirous of) performing the job duties, are afforded maximum access to those opportunities, is unreasonable in many circumstances and based on faulty logic. The
DOLs intention of requiring additional recruitment is predicated on its belief that
more recruitment will result in more opportunities for U.S. workers.
It is our view that this position is based on faulty reasoning because many employers, including Grand Hotel, already conduct significant recruitment far above
that which is required under previous DOL regulations, and which has absolutely
not resulted in the hiring of additional U.S. workers, even during the last few years
of increased nation-wide unemployment. The requirement by the DOL to have employers conduct additional recruitment if employers are located in an ASU, could actually result in employers conducting only the DOL-ordered additional recruitment,
which might actually result in the placement of fewer advertisements. Grand Hotel
is located in an ASU, but because we are committed to hiring as many U.S. workers
as possible, we are already placing many more advertisements than could be required by the DOL under its rules.
For example, in 2012, Grand Hotel conducted the following recruitment in order
to find staff in the U.S. for our available positions:
Advertisements
Lansing State Journal; Detroit News
Detroit Free Press; Grand Rapids Press; Sault Evening News; St. Ignace News
Mackinac Island Town Crier; Traverse City Record; Eagle Petoskey News Review
Job Fairs (to which Grand Hotel sends recruiters)
Michigan State University; Northwestern Michigan College; Northern Michigan
University
Advertisements in the following College Areas
Grand Rapids Community College; Henry Ford Community College; Schoolcraft
College
Northwood University; Kent State University
Electronic Media
Craigs List; Monster.com
Michigan Talent Bank, also known as Pure Michigan Talent Connect (which is
used by Grand Hotel throughout the 7 month period during which the hotel is in
operation, which in turns makes referrals from local Michigan employment offices
in St. Ignace and Cheboygan)
Grand Hotel Website found at www.grandhotel.com (on which job openings are
listed year round. When the website became operational, the number of applications
jumped from 600 to 1,600, and did not result in the hiring of more U.S. workers
who could work the entire contract period.)
Other Recruitment
At various seasonal resorts in Utah, Colorado and Florida
Cheboygan & Presque Isle Annual Job Fair hosted by Michigan Works; Gerald R.
Ford, Flint, Detroit, and Golconda Job Corps Center
Ubuntu Institute (founded by Nelson Mandelas grandson)
We are very excited about our new relationship with the Outbound Programme
of the Ubuntu Institute. The Outbound programme is designed for youth and adults
from Southern Africa (SADC) and provides internships, learnerships, and training
opportunities for unemployed graduates from disadvantaged communities in Southern Africa for a period of 6-12 months. The programme is largely focused on Tourism and Hospitality, one of the fastest growing economic sectors in most Southern
African countries. The participants of this programme, referred to as Ubuntu Institute fellows travel to the United States and Canada to gain work experience at
some of the most distinguished companies in the world. We have not yet been approved for Ubuntu Institute Fellows for this season and we are hopeful some of
these Fellows will be joining us on Mackinac Island this summer.
As a result of our sustained recruitment efforts in 2012, we received 1,665 applications from U.S. workers for various positions at the Hotel, including but not lim-
37
ited to the positions for which we sought H-2B workers, and of these 1,665 applications, only 358 or 21% were available for our full season.
Finally, we believe that permitting the DOL to require employers to contact community-based organizations based on a determination that a particular employer is
located in an ASU places an undue burden on the DOL, which would have to become familiar with the areas community-based organizations. This might result in
hasty and un-researched determinations by the DOL, and ultimately will not result
in the net hiring of additional U.S. workers. Grand Hotel is familiar with community-based organizations on the Island and in surrounding areas, including St.
lgnace, Mackinaw City and Cheboygan, and advertisements with and referrals from
those organizations have not proven to be very fruitful. In addition, the rule gives
the DOL far too much discretion in supplanting its wisdom for the wisdom of an
employer that has been in existence in Mackinac County for over 120 years and
which fully understands the local labor market.
Recommendations for Comprehensive Immigration Reform:
Comprehensive immigration reform must maintain a viable non-agricultural
seasonal worker program along the lines of the existing H-2B program.
The program should maintain current protections for American and H-2B workers and not impose costly burdensome requirements on employers who use the H2B program. The federal government should enforce existing protections.
The number of participants in the program should be market-based, so it can
fluctuate based on need, and the returning worker exemption should be re-instated.
Returning workers have demonstrated that they will comply with the rules of the
program. The number of workers desiring to return confirms that most employers
treat their H-2B workers fairly.
The current H-2B requirement that an H-2B worker cannot leave a sponsoring
employer until the successor employers USCIS petition has been approved should
be maintained. Sponsorship of an H-2B worker is a costly and time-consuming process for a short season.
H-2B employers should not be vulnerable to losing a worker the day before the
date of need.
Immigration reform should provide sufficient resources for federal agencies to
process H-2B applications in a timely manner.
Thank you, Mr. Chairman.
Grand Hotel Recent Awards
AAA Four Diamond Rating
Rated by a AAA field inspector as an excellent property displaying a high level
of service and hospitality.
The Greatest Hotels in the World
Travel & Leisure Magazine, January 2011The annual guide to the 500 best hotels in the world. The list contains the hotels that received the highest rating in
the Travel & Leisure reader survey along with opinions and advice of its editors and
reporters.
Top 100 Readers Choice Award
Conde Nast Traveler, November 2011Voted by readers as one of the top 100 resorts in the United States.
Worlds Best Awards
Travel & Leisure Magazine, August 2011Voted by readers as an essential index
of the places you want to go in the United States and Canada.
Top 125 Golf Resorts
Conde Nast Traveler, April 2011Chosen by thousands of readers as a property
that marries outstanding golf with fantastic lodging, dining, and service for the avid
or casual golfer. Grand Hotel was ranked 4th in the top northern U.S. golf resorts
category.
Silver Sage Award
Spa Magazine, 2011 Readers ChoiceSelected by readers as one of the top resort/
hotel spas in the Midwest.
TripAdvisor 4.0 Rating
July 2011Grand Hotel received the 2011 Certificate of Excellence from
TripAdvisor acknowledging the most powerful recommendationthe endorsement of
guests.
38
Gold Key Award
Meetings & Conventions Magazine, September 2010Selected by readers of M&C
who based their votes on overall professionalism and quality of property. Experienced meeting planners selected their winning properties based on strict industry
criteria including staff attitude, quality of meeting rooms, quality of guest service,
food and beverage service, and recreational facilities.
10 Best All-Inclusive Family Resorts
FamilyVacationCritic.comSelected number four in the U.S. and Caribbean in a
September, 2010 rating based on setting, activities, food, and overall experience for
families.
T+L Worlds Best Hotels For Families
Travel & Leisure Family Magazine, September 2011Selected by readers as one
of the 50 best family-friendly resorts in the United States and Canada.
Best of MidAmerica
Meetings Focus MidAmerica, August 2012Selected by readers of Meetings Focus
MidAmerica magazine as one of the top properties in the Midwestern United States.
Stay List
National Geographic Traveler, April 2008Nominated by travel experts and seasoned travelers and then selected as one of 150 properties in the U.S., Canada, Mexico and the Caribbean Region with location-inspired architecture, ambience, and
amenities, eco-stewardship, and an ethic of giving back to the community.
Top 10 Historic Hotels
June 2009Selected by AAA property inspectors as one of their favorite historic
hotels.
Award of Excellence
Wine Spectator, August 2010Recommended as a restaurant where a fascinating
wine experience is part of the dining experience. Wine lists are judged by the number of selections, quality of wines chosen, depth of vintages, compatibility with the
restaurant menu, inventory, and how easy the lists are to use.
56 Hotels We Love
National Geographic Traveler, September 2004Named one of the American hotels that deliver a unique experience and a lasting impression.
Award of Excellence
Corporate & Incentive Travel, November 2006Recognized by subscribers as a resort that has superior staff service, excellence in accommodations and meeting facilities, trouble-free food and beverage functions, smooth set-ups and arrangements for
social functions, exceptional ambiance, and convenient and accessible location.
Inner Circle Award
Association Meetings MagazineVoted by readers as one of the top hotels in the
country for meetings.
Planners Choice Award
Meeting News MagazineRecognized as one of the best in the industry by conference and convention planners based on the quality of facilities and services provided.
Golden Links Certified
Corporate Meetings & IncentivesCertified by an advisory panel as an outstanding facility for golf and meetings.
Excellence in the East Award
Meetings East MagazineChosen by readers as one of the top 56 properties in
the Eastern and Midwestern United States and Canada. The properties were selected based on the quality of meeting space, guest rooms, staff, service, food and
beverage, amenities, activities, and value from properties that they have used within the last two years.
Playful Travel Award
Nick Jr. MagazineChosen by top family travel experts and editors from Nick Jr.
Magazine as well as two
Nickjr.com online surveys as a hotel that offers the best facilities and products
to suit the needs and tastes of Nick Jr. families. It is accessible, affordable, and ac-
39
commodating and offers unique features that make kids feel special and make parents feel cared for and comfortable.
Best of the Midwest
Midwest Living MagazineFeatured as one of the top 37 Midwest resorts selected
by the editors of Midwest Living in the Best of the Midwest 2006 edition.
Top 25 Around the World
Gourmet MagazineSelected by Gourmet Magazine as the top hotel in the Midwest and one of the top 25 hotels in the world, in the May 1997 issue.
Greens of Distinction
Corporate & Incentive Travel, 2008In recognition of outstanding golf facilities
and service for corporate meetings and incentive travel programs as a result of a
subscriber survey.
40
41
Chairman WALBERG. I thank you and each of the witnesses this
morning.
I recognize myself for my 5 minutes of questioning.
Mr. Musser, I detect that there may be a second negative of air
conditioning. Not only has it encouraged the expansion of federal
governments staying around longer here in Washington, but I am
sure it has made it somewhat difficult by opening opportunities in
tourist spots other than in Michigan and in the North.
Let me ask you a question. Critics of guest worker programs
argue that American workers would fill temporary jobs if they were
better able to access information about the positions. Grand Hotel,
as you have described, does extensive outreach to connect with
American workers, yet you still have to turn to foreign workers.
Can you further describe some of your recruitment efforts, and
do they go beyond the requirements of the H-2B program?
Mr. MUSSER. Thank you, Mr. Chairman. And yes, our recruitment efforts do go beyond the requirements. Quite frankly, I would
like to hire all Mackinac County residents if I could, but unfortunately, there are just not enough willing to do the job.
We have, in the past, run buses to Detroit to homeless shelters.
In addition to the program I outlined in my testimony, we have
tried a variety of programs and will continue to do that. The most
recent is Job Corps, which iswe have found some good American
staff through that, and we will continue to do those.
But unfortunately, you know, we are in this isolated location 300
miles away from the, you know, the largest population base in our
state. We are difficult to get to even in the summer, and the idea
of individuals leaving their life, if you will, for 6 monthspacking
up and coming to this isolated location is not a reality, or at least
in the numbers that we need to operate.
And I think that as far as the foreign nationals that we do bring
in, it is important to note that last year, for example, of the 260
or so H-2B workers we had, 90 percent were returning. So if our
wages werent good and the type of work environment that we
work hard to create wasnt good, I dont think those individuals
would be returning.
Chairman WALBERG. Your testimony highlights that the Labor
Departments new H-2B rules would threaten your ability to fully
recover from the recent recession. Explain a little bit in more detail
why you say that.
Mr. MUSSER. The costs are problematic. Some of the suggested
changes, such as the requirement to accept an individual up to 21
days prior to the needor the date of starting work is difficult.
If we play by the rules and we do everything in our power to find
Americans and then are not able to do it and we are able to bring
an H-2B worker, if we are told up to, you know, 3 weeks prior to
our opening date that we have to remove that person it is very difficult to reasonably plan for the season and get the crew up to
speed and ready for the summer. And then to go through the process again is not realistic to find, if that American doesnt work out,
to find an H-2B person to replace him or her.
So the costs and also the timeframes are two areas of difficulties.
Chairman WALBERG. Reality gets in the way.
Mr. MUSSER. Yes.
42
Chairman WALBERG. Ms. Reiff, your testimony suggests that
there should be a lower-skilled guest worker program that does not
tie visa-holder to a single employer. Can you elaborate for us on
the benefits of that approach?
Ms. REIFF. The idea is that employers in the lesser-skilled areas
would be able to actually recruit for positions, show thatdo extensive recruitment, show that they couldnt find U.S. workers for particular positionslets say they are LPNs or CNAsand then they
would register within the system and be identified as an employer
that was not able to find X number of workers. Workers, then, that
were looking for that type of work overseas would have access to
a database to showor through a foreign recruiter to show that
they also qualified for that position. So it was kind of a willing
worker, willing employer kind of matching database.
The employer would then be able to get a visa, come in, be registered with that employer, be tracked through a monitoring system, and if the employee decided to leave they could go to another
registered employer. So they would be able to leave if they decided
that they didnt want to be there. But that employer would still be
registered for those particular slots and would be able to recruit
another worker, whether it is a U.S. worker or somebody from
overseas.
Chairman WALBERG. Okay. Thank you.
My time is expired.
I now recognize the ranking member, my good friend, Mr. Courtney.
Mr. COURTNEY. Thank you, Mr. Chairman.
Just to sort of follow up on that point, I mean, your testimony,
Ms. Bauer, really was focused a lot on, you know, some real horror
stories of people who were sort of trapped under the existing system with an employer and nowhere else to go. I mean, the sort of
reform that you were sort of describing in terms of more portabilitymaybe I just was kind of curious to have you comment
onon whether or not that would improve that obvious problem
that your center has identified, and the reports, and actually the
GAO also identified.
Ms. BAUER. Well, maybe. And maybe it will make an improvement. But I think it is not a panacea, particularly as described in
this proposal, because workers would still have to go to a registered
employer; they wouldnt be free to go find a job more generally. Our
experience is that that is very difficult for workers to access those
jobs and to find a job in the timeframe that is appropriate.
I think more importantly, those jobs would still remain as jobs
that would then be available to, presumably, additional guest
workers who would come in, and paid under the prevailing wage
rate or paid less than the average wage rate, which would have a
depressive effect on U.S. wages and working conditions.
Mr. COURTNEY. Right. I mean, the wage issue, which again, I
think you did a nice job sort of walking us through that, I mean,
that certainly is something that needs to be looked at. But, I mean,
the AFL-U.S. Chamber joint statement, which again, I think we
have got to embrace whatever sort of traction we can get around
this town, you know, when opposing forces are comingtrying to
come together, I mean, did actually specifically say that this
43
present system that, again, locks people into one employer should
be reformed. And, you know, I think that is encouraging.
Again, how you do it I guess is really the trick here. And, what
is your response to her observation?
Ms. REIFF. Well, I thinkthere are a lot of negotiations going on
right now but I think it was very important to the labor union side
to have this portability and the workers being able to vote with
their feet. It is also very important for employers who recruit and
cant find U.S. workers to be able to have that open slot if they
doif our foreign worker that comes in actually leaves and goes to
another employer.
So, for us, I think it is reallyit was a big concession to say that
portability should be from day one, but we also need to have those
slots still open because there is still an open position. That is not
to say that a U.S. worker wouldnt fill that position, but it should
still be in the database as a position that is open until it is filled.
And I think we are on the same page with the unions on that issue.
Mr. COURTNEY. Right.
And, you know, you mentioned database. I mean, it seems that
for, you know, a smart reform, you know, we need a system that
actually is better, in terms of just helping American workerswe
did a job fair in New London County last summer, which we had
33 employersthat was the good newssome in health care, some
in hospitality, some in defensethat had openings. We had 1,500
people in the pouring rain an hour or 2 before we opened the doors.
And, you know, it was clear that even though some of these employers had been advertising, the system is really still weak, you
know, in terms of people knowing what is out there. And it seems
like a reform is going to have to do better, as far as data being
available, again, to U.S. workers, in my opinion, at this time of recession. It is so obvious that there is a need there. But also, as
theif we do have a reform, there has got to be a way for people
to, you know, know what is going on out there.
Ms. REIFF. Absolutely. And
Mr. COURTNEY. But that is not the case now, right?
Ms. REIFF. Well, there are differentwe dont have a temporary
worker program right now aside from the seasonal non-agricultural
worker program, so we dont really know exactly how the lesserskilledsemi-skilled folksnow, this goes all the way up to less
than a bachelors degreethe scope of the program, from no skill
all the way up to could be an RN, because RNs dont necessarily
need to have a 4-year bachelors degree.
There has to be wayswe have listed out many different ways
to recruit these types of workers. It could be job fairs; it could be
in ethnic media; it could be in many different ways. It could be sitting outside the grocery stores. But there are many different ways
that we have identified in conjunction with our counterparts on the
other side that could adequately test the labor market.
But yes, our workersour employers want to hire U.S. workers.
We want to exhaust the U.S. workforce first and then reach out to
the foreign workers.
Mr. COURTNEY. Right.
I yield back.
Chairman WALBERG. Thank the gentleman.
44
Against my better judgment, and after what Indiana did unfairly
to Michigan the other night, I will show grace and recognize my
good friend from Indiana for his 5 minutes of questioning.
Mr. ROKITA. Well, thank you for that grace, ReverendI mean
ChairmanI mean both.
Good morning, everyone. Thank you for your testimony. It has
given me several questions to think about and ask you about, but
only 5 minutes so I will try to get right to it.
I want to draw out the idea of numerical limits. If I understood
the testimony correctlyI will just go right down the rowI want
to have you capsummarize your testimony. Do you believe in numerical limits? Do you not? If they are arbitrary, what is a better
what is not arbitrary? Should there be limits at all?
Ms. Reiff? Thank you.
Ms. REIFF. Numerical limits are arbitrary currently. The H-2B
program and the H-1B program have set limits that are really
nothow do we put thisthey were not thoughtfully put together,
they are just there65,000 for H-1B, 66,000 for H-2B.
What we see is a programa new program that takes into account the market needs, and when
Mr. ROKITA. And who decides what the market needs are? What
would you use?
Ms. REIFF. It is probably a combination of things, but basically
demand and
Mr. ROKITA. As defined by who and what?
Ms. REIFF. Demand probably defined by employers and the testing of the market.
Mr. ROKITA. What kind of employers? The ones that belong to
the Chamber of Commerce, or NFIB, or what?
Ms. REIFF. I am not speaking for the Chamber of Commerce
here, but
Mr. ROKITA. That wasnt my question.
Ms. REIFF. It would be a test of the market. After you have done
a sufficient test of the market and you can show that
Mr. ROKITA. Who is you? Department of Labor?
Ms. REIFF. Well, it would be the agency that is charged. Right
now the Department of Labor
Mr. ROKITA. Thank you.
Ms. REIFF [continuing]. Looks at the labor certification application
Mr. ROKITA. Very good.
Ms. REIFF [continuing]. So yes.
Mr. ROKITA. Thank you.
Mr. Benjamin, same kind of question.
Mr. BENJAMIN. Sir, I dont pretend to be an expert in all the different rules. I can tell you that I live at the ground level, and what
that means to me is I have a 24/7/365 responsibility to care for the
elderly. And I just want some help to bring new workers in.
Mr. ROKITA. Yes. So as an aside, lets take a specific question I
had for you. Your testimony notes that foreign workers interested
in the health care field currently face, insurmountable roadblocks. Elaborate on that, please.
Mr. BENJAMIN. Just being able to get them to come in with the
limits that are out there currently.
45
Mr. ROKITA. These caps I am talking about?
Mr. BENJAMIN. Caps, yes, sir.
Mr. ROKITA. Okay. Any other roadblocks?
Mr. BENJAMIN. Sometimes there are cultural roadblocks, and we
deal with those in our orientation process. We try very carefully.
We let our residents be involved, for example, in the interview
process with people that are going to take care of them.
Mr. ROKITA. Okay. Thank you.
Ms. Bauer, did you want to comment on the 65,000 and 66,000?
Ms. BAUER. Well, thein the H-2B program the cap has not been
reached since 2008, so we are not filling the 66,000 slots that are
available.
Mr. ROKITA. But would you agree it is arbitrary nonetheless?
Ms. BAUER. It is not related to changes in the economy but it is
certainly clear that in the last several years we havent needed
more workers than that because we havent filled those slots.
Mr. ROKITA. But would you support a supply-demand kind of scenario that Ms. Reiff was talking about?
Ms. BAUER. Not with a program that is structured as the programs are currently structured, we would not support that.
Mr. ROKITA. And along those same lines, Ms. Bauer, do you think
that a sovereign nation has a duty to its citizens or a right of some
kind to have an immigration policy that exists solely to serve economic interests of the nation?
Ms. BAUER. No. I think there is a moral component to the conditions that we allow people to work under in the United States, and
there will always be an endless supply of people from other countries who are willing to come here and consider it even a good deal
to make one or two dollars an hour and to suffer under what we
might regard as appalling circumstances, but is that really how we
want to structure the work of our nation?
Mr. ROKITA. I would say, shouldnt it be the peoples decision to
make? We are not forcing them here are we? They are coming here
freely. I would like to think that people in this country and in this
world can make better decisions for themselves than you can for
them.
Ms. BAUER. It may be a good decision for an individual person.
Mr. ROKITA. Okay.
Ms. BAUER. I dont dispute that.
Mr. ROKITA. Thank you. Let me getbecause I am running out
of time, let me get to Mr. Musser.
You have seen the line of questioning. Can you comment on any
of it?
Mr. MUSSER. Yes. In regards to H-2B, I think that the returner
worker exemption that had been in place is the answer. You know,
that speaks to the individual that is not trying to somehow sneak
into our country through the H-2B program. It speaks to the individual that has been vetted before and is not a security concern to
our country. It is the, you know, it is the individual that apparently
does like our wages and our housing and the things that we do and
wants to come back. So I think that addresses the cap issue.
Mr. ROKITA. Thank you, sir, very much.
Mr. Chairman, the gentleman from Michigan with poor basketball skills, I yield back.
46
Chairman WALBERG. Grace will be remembered.
I thank the gentleman.
And now I am pleased to recognize my friend from New Jersey,
Mr. Andrews.
Mr. ANDREWS. Thank you, Mr. Chairman. Thanks for the approach to this issue. It is very important for our country.
And I join Mr. Courtney in saying I am very hopeful and optimistic we will have comprehensive immigration reform this year.
Our country needs it.
Ms. Reiff, the core of your argument is that there is an undersupply of labor forto fill necessary jobs in the United States,
andbut the unemployment statistics show that in the construction industry, for example, those who identify theirAmericans
who identify their last job as construction is a 15.7 percent unemployment rate; hospitality is 11.2 percent.
The AFL-CIO-Chamber principles say that Americans should
have first crack at available jobs. Do you subscribe to that agreement?
Ms. REIFF. Absolutely. Yes
Mr. ANDREWS. And you say in your testimony that there should
be rigorous recruitment by employers who want to take advantage
of the H-2B program. I want to flesh out with you what we mean
by rigorous recruitment of Americansrigorous recruitment
Ms. REIFF. Are you talking about the H-2B program or the new
worker program?
Mr. ANDREWS. Well, I am talking about your proposals. You
know, the proposals you made
Ms. REIFF. Okay. The proposal for the new guest worker programs.
Mr. ANDREWS. Yes. It talks about a rigorous attempt to recruit
Americans before you could use the new program, as I understand.
Ms. REIFF. Absolutely.
Mr. ANDREWS. Okay.
Ms. REIFF. Thego ahead.
Mr. ANDREWS. I would assume that in reading a GAO report
from 2010 you would agree that the following pieces of evidence are
not consistent with rigorous recruitment: One employer required
American applicants to run with a 50-pound bag to show they were
fit for a certain kind of work, which was not terribly related to the
work, as I understand it. An Oregon forestry employer placed ads
for open positions in newspapers in California and Washington but
not in Oregon for the work that was supposed to be done there.
Kansas City Star expose reported by the GAO says that one employer scheduled interviews with U.S. workers for 6 p.m. on Christmas Eve to seedoes that sound like rigorous recruitment to you?
Ms. REIFF. No, and I am wondering what they are recruiting for.
Because again, we dont have this temporary worker program in
place at this point.
Mr. ANDREWS. Well, no, they were recruiting for openings in the
hospitality industry and in the construction and the forestry industry, and to meet the requirement to show you had tried to recruit
U.S. workers this is what they did. What do you think rigorous recruitment would look like? Tell me what an employer would have
to do to establish that burden.
47
Ms. REIFF. Well, there are many different things that recruiters
can do, and in some of our negotiations with thein the current
comprehensive reform debate we have come up with lists of probably 26 different things that could be considered rigorous recruitment, so
Mr. ANDREWS. Could you share a couple with us that you
think
Ms. REIFF. Job fairs, high school job fairs, ethnic media, radio
ads, Internet recruitment, going to different perhaps union halls,
community centers, different ways of recruiting. There are many
different things that areprobably would be considered a little bit
archaic in the current
Mr. ANDREWS. Do you think that definition should be codified in
regulations, or issued as guidance, or how do you think employers
should know what the ground rules are to meet the burden of vigorous recruitment?
Ms. REIFF. I think the ground rules should be very clear and it
should be identified how many forms of recruitment and how that
recruitment is conducted. And I think most of the employers, at
least the ones you have seen here and part of our coalition, do over
and above what is codified right now in terms of recruitment for
H-2B and for the permanent residence process.
Employersgood actor employerswant to hire U.S. workers.
They dont want to
Mr. ANDREWS. Do you think that there is a critical errorshortage of needed workers in the construction field in the United States
today?
Ms. REIFF. Overall? At a 30,000-foot
Mr. ANDREWS [continuing]. In construction.
Ms. REIFF [continuing]. At a 30,000-foot level, probably not. However, I am notI dont represent the construction industry. I am
talking on behalf of the Essential Worker Immigration Coalition
and people in my practice. We have found situations where there
are specialty construction occupations where you cannot find
Mr. ANDREWS. I understand.
Mr. Benjamin, I want to ask you a question.
Mr. BENJAMIN. Yes, sir.
Mr. ANDREWS. You say that one of the problems in running your
facilitiesand I know what a challenge it is, chronic underfunding
in Medicare and Medicaid. There is discussion of a proposal that
would reduce Medicaid spending by about 18 percent under the
next 10 years from $4.1 trillion projected downwell, the cut is
$756 billion.
If that cut went into effect would that make your job easier or
harder in running your nursing home?
Mr. BENJAMIN. Thank you for asking that question, sir. It would
make my job all but impossible.
Mr. ANDREWS. The numbers I cited are from the Ryan budget,
which was approved by the House Budget Committee last night
and will be on the floor of the House next week. Do you think it
is unwise to cut Medicaid by 18 percent?
Mr. BENJAMIN. I cant understand where we would be able to
save that kind of money. As I mentioned, we are price-takers, not
price-makers. We take the rates that the statesthat are, as you
48
know, are already embattled, and governors all over the country
are having difficulty in funding their states.
Mr. ANDREWS. Thank you. As you say, someone who works from
the ground up, I think, has given us some very valuable insight on
a budget that the House will vote on next week. Thank you.
Mr. BENJAMIN. Thank you.
Chairman WALBERG. I thank the gentleman.
And it would be hoped that we could certainly find significant
savings in dealing with waste, fraud, and abuse, and I wasI am
certain that Mr. Benjamin would not recognize that problem in the
sense of supporting it, solet me now recognize my good friend
from Tennessee, Dr. DesJarlais?
Mr. DESJARLAIS. Thank you, Mr. Chairman.
Thank you all for being here today.
Let me ask, Ms. Reiff, what is the average wage that you offer
for most jobs that you are trying to hireor that are competing
with American jobs?
Ms. REIFF. It is quite a range because the scope goes from lesserskilledunskilled individuals all the way up to people that may
have a 2-year associates degree or more.
Mr. DESJARLAIS. Just an average, can you
Ms. REIFF. Could be $27, $28 an hour at some levels. It could
be
Mr. DESJARLAIS. And you are having a hard time filling those
jobs with American workers?
Ms. REIFF. Believe it or not, yes.
Mr. DESJARLAIS. Okay.
Mr. Benjamin, what is your average wage for the people that you
are having trouble finding American workers for?
Mr. BENJAMIN. For certified nurses aides the average wage is
about $11.50 an hour. For licensed practical nurses the rateaverage rate is about $16.50 per hour. For RNs it is in excess of $20.
Mr. Musser?
Mr. MUSSER. About $10 an hour.
Mr. DESJARLAIS. $10 an hour.
Do you find that there is a competitor against finding American
workerwho is your biggest obstacle to finding American employees to do these jobs, or what is your biggest obstacle, in terms of
applicants?
Mr. MUSSER. Well, in our case it is location and the fact that we
are closed for more than half the year, and
Mr. DESJARLAIS. So there are no workers that are willing to
come out there that are maybe single that dont have families. That
has been
Mr. MUSSER. Some. And we certainly encourage and do everything we can to find those individuals. And our experience with the
American workforce is that in general if we get you for two seasons
we get you for about a decade. But the challenge is getting them
to Mackinac, getting them to accept leaving their home for half the
year or more than half the year to come to us.
Mr. DESJARLAIS. Okay, that is good.
How about, do you find anybody that is standing in the way of
finding American workers, or what might be?
49
Mr. BENJAMIN. Well, we haveabout half of our facilities are in
rural locations, so that is a locational disadvantage of substantial
nature.
Mr. DESJARLAIS. Well, folks, I am going somewhere with this. I
guess I will try to get us there quicker.
I have a lot of nursery workers in Tennessee that hire seasonal
workers, and they have tried to get American workers to come out.
We have unemployment rates that exceed the national level.
And it seems what I am hearing from them and actually a lot
of businesses just around the district that arent ag-related or construction are saying that they cant compete against the unemployment rates. If the job is not $10 to $14 an hour you cant get people
to come off unemployment to take those jobs. And are you finding
that or are you
Mr. BENJAMIN. We dont hire seasonal workers. We have 24/7/365
responsibility.
Mr. DESJARLAIS. Okay. All right.
And then how about working with local colleges, vocational
schools. Are we reaching out to them saying, hey, we need workers
here; we cant find workers; we are having to get immigrant workers? What are you doing to encourage that type of cooperation?
Mr. BENJAMIN. We have relationships with a variety of local community colleges and many of those individuals, part of their training is that they have to do an internship, and we gladly cooperate
with them because wethey are a ready source of labor for us.
Mr. DESJARLAIS. And, Ms. Reiff, did you have something to add
to that?
Ms. REIFF. A lot of our employers offer in-house training to U.S.
workers. We reach out to vocational schools, to high schools, do all
kinds of recruiting to try to get people into the workforce. We do
prison-to-work if possible, welfare-to-work, refugee programs,
reaching out all over the place looking for the U.S. workers to take
thea lot of these jobs are just very, very demanding and difficult.
Being an LPN or a CNA is a very demanding job and it takes a
special person to deal with those.
Well, it seems that there might be a little more incentive if it
wasnt so easy to get 99 weeks of unemployment that Americans
would take these jobs. And I understand there has been studies, I
know in the agriculture area, where they have advertised for American workers, they have had big job fairs, they will get 3,000 applicants and maybe three will actually show up for work and less
than that make it through the day. They are just not willing to do
that job.
So I think we have a big problem here in the federal government
by enabling people to not do the work. And I know you said $27
an hour, so we are looking $50-some-thousand a year. I mean, that
is unbelievable that we cant find people to take those jobs.
I did want to yield a few seconds to my colleague, Mr. Rokita.
Mr. ROKITA. Thank you, Dr. DesJarlais.
Mr. Benjamin, going back to the Medicare line of questioning
Mr. ROKITA [continuing]. Are you aware that the state of Rhode
Island recently received a waiver which capped their Medicaid
50
funding for a whole 5 years in exchange for being relieved from
nearly all the Medicaid laws, and they put their Medicaid patientsthe poor that the Medicaid program is supposed to serve
in a managed care and they didnt need any more money? Yes or
no?
Mr. BENJAMIN. I am sorry. I didnt understand the question.
Mr. ROKITA. Are you aware of the Rhode Island waiver?
Mr. ROKITA. Okay. Are you aware that in the state of Indiana
we have a Healthy Indiana plan that is the product of a waiver
that in exchange for being released from all themost of the Medicaid rules and regulations we were able to cover 40,000 more truly
poor people without adding a cent more to the budget of either our
state or federal line items?
Mr. BENJAMIN. I am aware of those programs.
Mr. ROKITA. Okay. Thank you very much.
My time is expired.
Chairman WALBERG. Gentlemans time is expired.
I now recognize a gentleman who understands the beauty of islands, Congressman Sablan.
Mr. SABLAN. Thank you very much, Mr. Chairman, and thank
you for conducting todays hearing. I think it is an issue that we
all need to start addressing.
When I am asked what is the two best things that Congress has
ever done for the place I am from, and one is to approve the permanent political status relationship we have with the United States,
and the second thing that Congress has ever donethe bestsecond-best thing, I think, is the federalization of immigration system
law in the Mariana Islands.
Because, Ms. Bauer, testifyinglisteningsitting here listening
to you testify, I thought you were just talking about memy
where I am from. Because we had a guest workers program that
is just out of whack. We have our government and big time companies hiring big guns here in D.C. to just continually delay this, and
when it was over we found, left with a mountain of nastylisten,
things that I have been spending going on 5 years now trying to
correct parts of it, and, because that is for us a wall of shame and
it is really hard to do, but.
And, Ms. Bauer, what is the averagewhat is the amount of
the salary pay for H-2 workersI mean, H-2 forH workers in the
country?
Ms. BAUER. Well, that varies by locality and industry. I would
say that what is particularly relevant is that the salary paid to H2B workers has been estimated to be as much as $4 to $5 dollars
less than the average wage in the industry and in the locality, so
that H-2B employers are able to pay less than the average wage.
In landscaping that difference has been estimated at about $3 per
hour; in seafood processing, more than $4 an hour.
So that is certainly part of the story when we talk about the inability to attract U.S. workers. And the other side of that, of
course, is the current recruitment requirements.
Mr. SABLAN. Thank you.
What we need to do hereand this is why I am very grateful to
the chairman for bringing this issue up and early is, I do under-
51
stand that we need to strike a balance between the needs of employers and theto prevent the exploitation of workers. Again, I
am a microcould somebody say the English word? I am a small
exampleI am the example of what can happen with a system run
amuck.
But the key word here is a balance. That is critical to all of this.
I dont like the attestation, because employers do get away with
that. I still dont understand whether it is back homeand I come
from an island so I cant run away from anyone who wants to see
me. They know wherethat hole I have lunch at, andbut we
I dont understand why we have unemployment of U.S. workers
and yet continue to have a need to bring in workers from third
countries.
And I dont callfrom where I come from I dont call them guest
workers because some of them have been there for 25 years, and
I dont call them foreign workers because they are as much a part
of our community as anyone else. So I still cannot comprehend
whether it is home, where I meet with employers and I meet with
workers and I meet withor here, when we have unemployment
at going on 8 percent per, you know, national, and yet you are
some of you are telling us your here that we cant find able and
willing workers?
But you cant find them if you advertise for 2 days in the paper
because these people dont have jobs and probably cant afford to
read the paper. Webut we need to strikeI do understand that
a balance.
And, Mr. Musser, for those of your customers who come to you
in the winter and they need a place in the summer, there is a
we have islands out there. Beautiful place, too.
But no, seriously, this is an important issue that we need to address and I am also very, very happy going on 5 years now that
CIRcomprehensive immigration reform is being addressed by this
Congress and we arelast night somebody said that we should get
it done by August 1st. I look forward to August 1st.
Thank you very much, Mr. Chairman.
Chairman WALBERG. I thank the gentleman, and we will take
that under advisement.
I am now pleased to recognize Ms. Bonamici, from the other end
of the country.
Ms. BONAMICI. Thank you very much, Mr. Chairman. I apology
for being slightly out of breath. I am participating in a markup in
another committee.
I wanted to reiterate the comments of my colleagues about the
importance of comprehensive immigration reform, and I am certain
that others who have listened to this testimony today would agree
that this is yet another example of why we need comprehensive immigration reform.
I want to follow up on the question that Mr. Andrews asked earlier that brought attention to what happened in my home state of
Oregon.
And, Ms. Bauer, in 2011 the Department of Labor inspector general reported that the forest contractors in Oregon working on
thinning projects under ARRA were able to bring in foreign nationals under the H-2B program even though there was double-digit
52
unemployment in the counties where the work was being done, and
it was stated earlier that the advertising for those jobs was done
in other states.
The report, which I would ask be entered in the record, Mr.
Chairman
[The report, Program Design Issues Hampered ETAs Ability to
Ensure the H-2B Visa Program Provided Adequate Protections for
U.S. Forestry Workers in Oregon, dated Oct. 17, 2011, may be
accessed at the following Internet address:]
http://www.oig.dol.gov/public/reports/oa/2012/17-12-001-03-321.pdf
Chairman WALBERG. Without objection.

Ms. BONAMICI. Thank you, Mr. Chairman.
Because of the current system that allows for self-attestation regarding efforts to recruit U.S. workers a group of loggers was able
to avoid having to interview U.S. workers for available work and
the inspector generals report found that most Oregonians were not
even aware that the jobs were available. As it was stated, they advertised outside of Oregon. In fact, some of the employers actually
discouraged the few U.S. workers they interviewed and then, of
course, the foreign nationals were brought in to do the work.
Ms. Bauer, as your testimony noted, there is the Department of
Labors 2012 final rule to protect workers in the H-2B program.
This is being challenged and the case is now pending before the
11th Circuit Court of Appeals, and two of my colleagues from Oregonboth Senator Jeff Merkley and Representative Peter DeFazio
have filed amicus briefs in this litigation.
So could you talk a little bit about what the rule would have accomplished had it been in place in this Oregon situation? Would
the abuses have been prevented?
Ms. BAUER. Well, as you noted, thethose regulations would
have required a certification process, which does involve greater
oversight by the U.S. Department of Labor. But it also, I think,
maybe as importantly, requires far more rigorous recruitment of
United States workers.
The current system allows for the advertising of these jobs2
days in a newspaper 120 days before the job starts. In the world
of low-wage workers, that is not a reasonable way to recruit workers for low-paid temporary jobs.
We also see employers fighting against the regulations that
wouldthat would produce an online national registry of these jobs
so people could find out about them and determine whether they
are good jobs and might be a good fit. Right now it is virtually impossible, because of thesome of the issues you raised in terms of
where the advertisement takes place and when the advertisement
takes place, for people to find out about these jobs. The
Ms. BONAMICI. Thank you.
And I read Mr. Mussers testimony from the beautiful Mackinac
Island and heard about some of the efforts that he is taking, but
certainly not all the employers are taking those efforts. So there
has been some suggestion in the testimony today that an employers self-attestation should be the basis for a guest worker program.
Is that a sound way of approaching this policy?
53
Ms. BAUER. In our view, no. And let me explain just a little bit
of what the certification will kind of weed out that the attestation
process doesnt. Primarily, the difference in terms of the process
and the oversight is that the people who werethe applications
that were weeded out under the certification process were applications that had jobs that were permanent, and that was the largest
number of applications for H-2B workers that were weeded out by
certification that people described them as temporary but the DOL
looked at them and said, No, these are good, permanent jobs. And
attestation doesnt allow for that kind of review until after the fact.
Ms. BONAMICI. Thank you.
And my time is about to expire, but we have talked about comprehensive immigration reform, but until we can do that, what
needs to be done to make it clear that the Department of Labor
does have the legal authority to issue rules under the H-2B program?
Ms. BAUER. Well, we believe the Department of Labor does have
that authority, but because a court has indicated that there is less
clarity than that court would prefer, we believe that it would be appropriate for Congress to make it abundantly clear that they intended the Department of Labor to have rule-making authority.
Ms. BONAMICI. Thank you very much.
And my time is expired. I yield back. Thank you, Mr. Chairman.
Chairman WALBERG. I thank the gentlelady.
And I thank each member of the panel for taking the time to be
with us today and adding the expertise and experience that you
brought with.
I now recognize my friend, the ranking member, Mr. Courtney,
for any closing comments.
Mr. COURTNEY. Thank you, Mr. Chairman.
Again, I just want to reference at the close here the, again, the
positive signal that the AFL and the Chamber issued recently in
terms of their, you know, joint commitment to try and reform and
improve this system. And what the statement said in ajust a
small portion of it here is, our challenge is to create a mechanism
that responds to the needs of business in a market-driven way
while also protecting the wages and working conditions of U.S. and
immigrant workers. Among other things, this requires a new kind
of worker visa program that does not keep all workers in a permanent temporary status, provides labor mobility in a way that gives
American workers a first shot at available jobs, and that automatically adjusts as the American economy expands and contracts.
I thought that was a very nice way to sort of summarize, you
know, what the end game should be here for Congress, and I want
to thank the witnesses for their great testimony today because I
think it is going to help us guide and direct our way to reach that
goal, which again, two sides which normally dont agree on much
are already expressing an historic commitment to achieve.
So thank you, Mr. Chairman, for holding this hearing.
Chairman WALBERG. I thank the gentleman and am impressed
the attorney with thethat you are with the brevity that you carry
on here in committee, and that is a good thing and I will try to
follow suit even though I am a pastor by training.
54
I want to thank the panel again for taking the time to be here.
Your experience, your passion with what you do and who you care
for, the jobs you provide, the service you provide is much appreciated.
This is an issue and I would concur with both sides of the rostrum here that immigration is a huge issue that we have to address. And what type of reform, we have to address.
And I want to make sure that this subcommittee and our committee plays a key part in making sure that areas that we have
purview over and responsibility for are addressed in proper ways
that have reality, that meet needs, and as much as possible dont
make more problems. We dont need that.
We want to encourage the American dream. We want to encourage people like my grandmother, grandfather brought my father
and his brother over from Sweden in the early 1900s, and grandfather and family who helped to build the skyline of Chicago, and
a grandmother who cared for the needs of people in Glencoe and
the North Shore of Chicago.
And, Mr. Benjamin, I know you, having grown up in Glencoe, understand what that is.
But Grandma was just delighted, as an immigrant, to clean
houses, take care of the needs of those people, because her two sons
went to Glencoe High School, the same place the wealthy and others went to and gave her the opportunity to share that dream with
her children. How she was cared for, I dont know. She never said.
But she was delighted for the opportunity of the American dream
to be part of her life.
We want that to continue. Immigration expands our countryits
creativity, its resourcefulness, and the whole melting pot aspect.
It also spurs those of us who have had the privilege to be American citizens and to grow up here, to be born here, to be all we can
be as well, and we certainly want our objective in dealing with H
programsH-2B specifically today, and others, to foster that great
experience that this country offers and must continue to offer, as
well as the creativity and the strength and resolve of people who
yearn to use that in responsible ways to expand what this country
can be, as well, to the rest of the world.
And so we will continue looking at this, and I appreciate comments from both sides of this rostrum on our way forward. We will
consider that, and ultimately, to have the opportunity to do good
work.
I would like also, in conclusion, to enter for the record a letter
from representatives of the construction industry who are not in
front of us but wanted to have their comments brought forward on
this issue, as well as letters from landscaping and hotel and lodging industries, the Center for Global Development, ImmigrationWorks USA, and the H-2B Workforce Coalition.
[The information follows:]
March 13, 2013.
Hon. TIM WALBERG, Chairman; Hon. JOE COURTNEY, Ranking Member,
Subcommittee on Workforce Protections, U.S. House of Representatives, 2181 Rayburn House Office Building, Washington, DC 20515.
DEAR CHAIRMAN WALBERG AND RANKING MEMBER COURTNEY: The undersigned
construction associations represent thousands of employers and hundreds of thousands of workers in all facets of construction-from home building, to road construc-
55
tion, to heavy industrial production, to specialty trade contractors and material suppliers. Together, we believe that in order to be successful in fixing Americas broken
immigration system, any viable remedy must do four things: strengthen our national security, create a role for employers in an employment system that functions
in a fair, efficient and workable way, address the realities of future workforce needs
in the less-skilled sectors, and find a reasonable, rational way of dealing with the
current undocumented population in the United States.
As the economy recovers, companies in the construction sector will face more
acute shortages of qualified workers-both craft professionals and laborers. Even in
recent years during a slow economy, our members have experienced difficulty in
finding workers. For decades, the immigrant workforce has played a vital role in the
growth and sustainability of our industry, and we are proud to note that for many
legal immigrants, jobs in the construction sector have provided them with a key opportunity to gain a foothold in the American middle class. Unfortunately, current
immigration laws-which all but ignore the needs of sectors that utilize less-skilled
immigrant workers-disproportionately affect construction companies because of their
fluctuating work needs.
A major deficiency in the 1986 immigration law was its lack of a legal program
to address the issue of a pathway for foreign workers to enter the United States
to work. Because the 1986 law did not create a legal system, foreign workers drawn
to the United States dynamic economy came into the country illegally. Congress attempted to resolve this deficiency in 1990, when it created the H-2B classification
for low-skilled non-agricultural workers. The program, however, is seriously flawed
and unable to meet the markets needs. The program is capped at a mere 66,000
visas per year and is not market-based, which means by definition the supply almost never matches demand.
To resolve this problem going forward, any future immigration law must include
a new market-driven program to provide a legal path for foreign workers to enter
the United States when the economy needs them, with fewer entering when the
U.S. economy contracts.
A successful future guestworker program must include:
An annual visa cap that fluctuates based on a demand-driven system that reflects the real economic needs of the nation;
An opportunity for employers to petition for an approved slot that allows them
to hire visa-holding foreign workers, and replace those workers if/when they move
onto another approved job slot;
A time period for job slot approvals, and approved visas, that reflects a long
enough time period to ensure that the training investment made by employers is
not lost;
A program that requires employers to treat these legal foreign workers in the
same manner as U.S. workers-with all of the same benefits, workforce protections
and wage rates as similarly-situated workers at the same location; and
A dual-intent process that allows some foreign workers who have demonstrated
a commitment to their jobs and their communities to choose to petition for a change
of status to a permanent legal status in the United States, while also incentivizing
most foreign workers to return to their home country at the end of their visa period.
We have a unique opportunity before us to reform our immigration policies to enhance our security, protect our economy, and continue our heritage as a welcoming
country of immigrants. We urge you to continue working together to craft a reasonable and balanced approach to addressing Americas immigration problems in a way
that resolves the issue for the long-term. We look forward to working with you, and
with the Senate and the Administration, to craft and support immigration reform
legislation that can be considered and passed by Congress this year.
Thank you for your consideration of our views.
Respectfully,
ASSOCIATED BUILDERS AND CONTRACTORS,
ASSOCIATED GENERAL CONTRACTORS,
LEADING BUILDERS OF AMERICA,
MASON CONTRACTORS ASSOCIATION OF AMERICA,
NATIONAL ASSOCIATION OF HOME BUILDERS,
NATIONAL ROOFING CONTRACTORS ASSOCIATION.
Prepared Statement of the American Horse Council
The American Horse Council (AHC) appreciates the opportunity to submit testimony concerning the H-2B temporary non-agricultural worker program and the
Role of Lower-Skilled Guest Worker Programs in Todays Economy.
56
The AHC is a Washington-based association that represents the horse industry
before Congress and the federal regulatory agencies. The AHC includes over 120
equine organizations representing all horse breeds and virtually every facet of the
horse industry, including horse owners, breeders, veterinarians, race tracks, horse
shows, trainers, rodeos, farriers, breed registries, horsemens associations, state
horse councils and commercial suppliers.
Despite substantial efforts to recruit and train U.S. workers, horse industry owners, trainers, and competitors must use the H-2B worker program to bring aliens
into the country as temporary, non-immigrant workers. Without these foreign workers, the horse industry could not continue to operate as it does now.
The horse industry, in all its segments of racing, showing, recreation and work
horses, involves 9.2 million horses, nearly 2 million horse owners, has a $102 billion
impact on the U.S. economy and supports 1.4 million full-time jobs. It involves agriculture, sport, entertainment, gaming, recreation and exercise, all built on the
breeding, training, use and enjoyment of horses and horse activities.
The racing and showing segments of the industry are particularly dependent on
the H-2B program. The horse racing industry has a $26.1 billion economic impact
and supports 380,826 jobs. The horse show industry has a $28.7 billion economic
impact and supports 380,416 jobs. The workers provided by the H-2B program are
a small portion of horse industry workers, however they play a vital role within the
industry.
Most H-2B workers in the industry are directly responsible for the care of the
horses upon which the entire horse industry is dependent. Without these workers
to care for the industrys horses, many American jobs provided by and supported
by the horse industry could be in jeopardy.
Caring for horses is not an easy job. It is hard, dirty work, with often erratic
hours. Many owners, trainers, and competitors simply cannot find enough Americans willing to take these jobs, as grooms and stable attendants. Many horse industry participants have reported they have not had a single American apply for these
jobs in several years. Furthermore, these jobs are not really unskilled. They require
knowledge and understanding of horses, an understanding most Americans no
longer have. Many H-2B workers have extensive experience with horses. Often the
same H-2B workers have been returning to working for the same employers year
after year.
In January 2009, the Bush Administration issued a new rule governing the H2B program. That rule made major changes to the H-2B program by implementing
an attestation-based labor process in place of the previous labor certification
process. This change among others was intended to make the H-2B program more
usable and efficient while still providing protections for American and foreign workers. We have heard from many horse industry employers that while it is not perfect
the H-2B program under the 2009 rule is working and serving its intend purpose.
Unfortunately, the Department of Labor (DOL) finalized a new H-2B wage rule
on January 19, 2011. This rule artificially increases the wages rates for H-2B workers far above current market based wage rates. Congress realized the adverse impact this rule would have on businesses and has to date prevented it from being
implemented. Furthermore, the DOL then finalized a new H-2B rule that would roll
back most of the provisions of the 2009 Rule that made the H-2B program more
usable and efficient and will add new and burdensome requirements. This rule
would make the program vastly more costly, complicated and would make the program unusable for many horse industry employers. The DOL has been prevented
from implementing this rule by a federal court in Florida that issued a temporary
injunction against it.
The AHC believes Congress must permanently block the DOL from implementing
either of these new H-2B rules. Horse industry employers who are forced to utilize
H-2B workers are very often small businesses. They will be hard pressed to absorb
any increase in costs these rules could force upon users of the program.
The reality in the horse industry is that most Americans are unable or unwilling
to take the jobs foreign workers usually fill. These foreign workers make up a small
portion of all the workers employed and supported by the horse industry. However,
without these foreign workers, the horse industry could not function and the hundreds of thousands of Americans jobs would be lost.
Horse industry employers use the H-2B program because they have to, not by
choice, because American workers are not seeking these jobs. In the current economic conditions any changes to the H-2B program that increase the cost of an already costly system could be devastating to those employers who rely on H-2B workers. Most horse industry employers who use the H-2B program also employ American workers in other capacities and support many other jobs. If current users of
57
the H-2B program are no longer able to afford to participate the jobs of many Americans employed by the horse industry will be put at risk.
It is absolutely vital for of the horse industry to have access to a functioning, efficient and cost effective foreign temporary non-agriculture worker program to meet
its labor needs. In light of recent DOL rulemaking, the AHC believes it will be up
to Congress to make sure the H-2B program can serve its intended purpose of providing seasonal employers with a legal means to hire workers when no U.S. workers
can be found.
The AHC appreciates this opportunity to submit testimony to the committee. If
the committee would like any additional information regarding temporary worker
programs and the horse industry, please contact us.
MICHAEL A. CLEMENS, PH.D., SENIOR FELLOW,
GLOBAL DEVELOPMENT, 1800 MASSACHUSETTS AVE NW,
Washington, DC, March 13, 2013.
Hon. TIM WALBERG, Chairman; Hon. JOE COURTNEY, Ranking Member,
Subcommittee on Workforce Protections, U.S. House of Representatives, 2181 Rayburn House Office Building, Washington, DC 20515.
DEAR CHAIRMAN WALBERG AND RANKING MEMBER COURTNEY:
Foreign Workers Benefit Massively from Guest Work Opportunities: Unequivocal
Findings of Economic Research
Leading development economists find that authorized guest workers typically
draw massive economic benefits from their work, relative to their best alternatives.
They migrate voluntarily, pass on large benefits to their families and home countries, and almost universally return home when guest work programs are well designed. Expanding opportunities for authorized guest work reduces the exploitation
of migrant workers by competing directly with the black market for labor.
The Center for Global Development is a non-partisan, independent, and non-profit
think tank dedicated to reducing global poverty and inequality through rigorous research. This submission briefly summarizes the latest research by myself and other
economists regarding the effects of guest work on guest workers.
Authorized guest work is the economic opportunity of a lifetime.
Authorized guest workers are the opposite of cheap labor. Workers who migrate
with a guest work visa raise the value of their labor, and therefore their earning
power, enormously. Almost all have no other way to raise the value of their labor
to anywhere near the same degree.
First, authorized guest workers labor would be much cheaper, and they would
therefore earn less, if they instead worked in the black market for labor. Todays
typical seasonal workers with an H-2 visa earn well above minimum wage; unauthorized workers routinely earn below minimum wage doing the same task.
Second, guest workers labor would be even cheapervastly cheaperif they
could not migrate at all. In a 2008 paper, my co-authors and I estimate that lowskill workers from Mexico, Guatemala, and Haiti who work temporarily in the
United States experience life-changing increases in earning power, between 300%
and 1,000% or more, depending on the country of origin.1 No other economic opportunity of this magnitude exists for almost all of these workers, anywhere.
It is incorrect to suggest that participation in authorized guest work programs is
typically coercive. My research on the largest US employer of authorized seasonal
agricultural guest workers shows that about 4 out of 5 hires each year are repeat
hires.2 The Independent Agricultural Workers Center in Yuma, Arizona, which
places about 1,000 authorized Mexican guest workers at US farms each year, has
a waiting list of over 7,000 Mexicans, hoping for the chance to work legally US
farms. Most already have experience working in the United States on identical
tasks.3
The vast majority of todays guest workers choose voluntarily to participate in the
program based on firsthand experience of its extraordinary benefits. What is cerCENTER
FOR
1 Michael A. Clemens, Claudio Montenegro, and Lant Pritchett. 2008. The Place Premium:
Wage Differences for Identical Workers across the U.S. Border. Working Paper 148, Center for
Global Development. The referenced estimates assume that authorized guest workers remit 60%
of their earnings to their home country.
2 I analyze internal records of the North Carolina Growers Association, the largest single employer of H-2A seasonal agricultural workers, in a forthcoming study from the Partnership for
a New American Economy and the Center for Global Development.
3 Michael A. Clemens. 2012. This Beats Most Aid by MilesAnd Its a Migrati on Non-Profit.
Views from the Center, Center for Global Development.
58
tainly harmful to low-skill foreign workers is the absence of flexible legal channels
for US firms to hire them, particularly in non-seasonal sectors.
Authorized guest workers also pass on very large benefits to their families and
communities back home. A rigorous evaluation found that the overseas families of
authorized guest workers in New Zealand experienced large increases in household
consumption, child schooling, and community infrastructuremaking this program
among the most effective development policies evaluated to date. 4 I have surveyed
the families of Filipinos doing authorized guest work in South Korea in a rigorously
controlled study, and I find that they experience dramatic increases in purchasing
power, especially for childrens education, and decreased indebtedness.5 In a forthcoming paper I survey the families of authorized Indian guest workers in the United
Arab Emirates, finding similar massive, positive effects of having a household member, working abroad earning over four times what he could earn at home.
Guest workers do return home when programs are well designed.
Problems with guest work programs two generations agobraceros in the United
States and Gastarbeiters in Germanyremain a common point of reference. But
just as telephone technology has changed since the 1950s, the design of guest work
programs has changed as well. Canada and New Zealand now have successful and
popular programs for authorized agricultural guest work that are large relative to
the size of their economies.
Smart design of guest work programs is critical to their success. In New Zealand,
much less than one percent of authorized guest workers fail to return home as
promised. This is attributable to key design features such as minimum employment
guarantees for complying repeat participants, targeting remote farms, and creating
incentives for employer cooperation in monitoring.6
It is a myth that all workers who come to work in the United States wish to do
so permanently. In fact, circular migration has been integral to US history. Frequent movement back and forth across the border is a generations-old tradition not
just for todays Mexican migrants,7 but for many Southern European migrants to
the United States over a century ago.8
What clearly deters return migration, as numerous studies have shown, is harsh
measures to stop unauthorized migration without creating channels for authorized
movement such as opportunities for authorized guest work.9 Because there is no
legal channel for migration, enforcement-only policies lead many unauthorized migrants to fear that they will lose the future option to work in the United States if
they return home.
The real alternative to authorized guest workblack market employmentis
much more exploitative of foreign workers.
To analyze the impact of temporary guest worker programs on migrants, it is only
relevant to analyze guest work relative to migrants alternatives, which would be
to stay home or come to the US as undocumented migrants. It is irrelevant to compare the benefits of guest work to the benefits of legal permanent residence or US
citizenship.
In the absence of a guest worker program, workers hoping to migrate to the
United States have only two options: participate in the black market for migrant
labor and increase their earning potential, or, to remain at home. Neither of these
serves the interest of low-skill, low-income foreign workers.
To be concrete: in 2006, the US Senate passed a bill that, if it had been signed
into law, would have created 200,000 visas for low-skill authorized guest work. Because those 200,000 slots for authorized guest workers were not created in 2006, almost all of those 200,000 people, who would have migrated each year, have done
one of two things: they have either come as undocumented migrants without any
legal protections at all, or they haveagainst their will and despite employers desire to hire thembeen unable to work in the United States. These have been the
4 John Gibson and David McKenzie. 2010. The Development Impact of a Best Practice Seasonal Worker Policy: Newzealands Recognised Seasonal Employer (RSE) Scheme. Working Papers in Economics 10/08, University of Waikato, Department of Economics.
5 Michael A. Clemens and Erwin R. Tiongson, Split Decisions: Family Finance When a Policy
Discontinuity Allocates Overseas Work, Policy Research Working Paper 6287, World Bank.
6 Department of Labour. 2010. Final Evaluation Report of the Recognised Seasonal Employer
Policy. Government of New Zealand.
7 Douglas S. Massey, Jorge Durand, and Nolan J. Malone, eds. 2003. Beyond Smoke and Mirrors: Mexican Immigration in an Era of Economic Integration. Russell Sage Foundation.
8 Dino Cinel. 2002. The National Integration of Italian Return Migration: 18701929. New
York: Cambridge University Press.
9 See papers by Fernando Riosmena and by Belinda Reyes in: Jorge Durand and Douglas S.
Massey. 2004. Crossing the Border: Research from the Mexican Migration Project. Russell Sage
Foundation.
59
genuine alternatives for potential US guest workers in the past; and it is the harsh
conditions experienced by these groupsunauthorized migrants and non-migrants
that is the relevant point of comparison for the lives of authorized guest workers.
Recommendations
Congress should determine the size and scope of a US guest worker program
by balancing the needs of US workers and US employers. No serious economic research supports the notion of limiting the size or scope of a US guest worker program in the interest of current or potential guest workers. Guest workers and their
families benefit massively from authorized guest work opportunities, far more than
from any real alternative available to most of them.
Guest work programs are not doomed to fail. The world has moved on from
guest work programs of two generations ago, and todays world has examples of successful, popular guest work programs with almost universal return rates. Careful
design of the program is key to this success.
The real-world alterative to guest work visas, in any substantial numbers, is
either unauthorized migration, which increases earnings but provides no legal protection, or staying at home without the opportunity to pass on large benefits to their
families and home communities. Given these alternatives, a well-designed guest
worker program is in the best interests of the potential migrants.
March 14, 2013.
Hon. TIM WALBERG, Chairman, Subcommittee on Workforce Protections,
U.S. House of Representatives, 2181 Rayburn House Office Building, Washington,
DC 20515.
DEAR CHAIRMAN WALBERG: In conjunction with the Subcommittees hearing entitled Examining the Role of Lower-Skilled Guest Worker Programs in Todays Economy, I appreciate the opportunity to provide information to the committee about
the importance of the H-2B program to our company, our U.S. workforce, and our
community.
I am Vice President and Operations Manager for Progressive Solutions LLC. Our
company is headquartered in the small rural town of Marshall, Arkansas, located
deep in the heart of the Ozark Mountains. Our business is fairly unique. We perform low volume selective stem back pack herbicide application for a number of clients, including for electric utilities to control brush growing under electrical lines.
We provide our services to clients in more than 20 states throughout the Southeast,
Midwest and Mid-Atlantic areas of the U.S. with the assistance of more than 300
seasonal H-2B employees that supplement our permanent U.S. workforce.
We work in a difficult outdoor environment. Workers are organized into crews and
walk up to 10 miles per day, often over rough terrain and in adverse weather conditions. Our work is performed seasonally, as we can only treat brush when leaves
are on the treestypically late spring to early fall. The work is migratory in nature,
with work in any particular area lasting just two to four weeks, and crews having
to move locations frequently. It is not unusual for a crew to work at 6-10 locations
over a 6 month period, often in three or more states.
In our experience, the difficult nature of the work, the seasonal aspect, and the
migratory movements of the crews make this job unappealing to most U.S. workers.
Despite aggressive recruitment of U.S. workers each year and the hiring of any
able-bodied U.S. worker interested in the job, U.S. workers comprise less than 1%
of our migrant workforce. And we pay wages for this work that far exceed the minimum wage. We estimate that within our industry, over 95% of the people performing this work (approximately 2000) are H-2B workers. In fact, this labor intensive work was really never performed by a U.S. labor force because this herbicide
application work is so closely related to reforestation work, which is also highly dependent upon H2B workers.
Over the years, the herbicide application work performed as part of reforestation
efforts has also been utilized in other forestry and forestry-like settings. Before
back pack application of herbicide was developed, the control of brush in other forested and overgrown areas, including under electric utility lines, was primarily done
using heavy machinery or by helicopters spraying herbicide. Our companys method
of clearing bush by, for example, spraying each individual stem that might grow into
the electric line and cause an outage, is the most environmentally safe and cost-effective way to tackle the problem of invasive vegetation. This is a critically important role that we perform for utility companies to help ensure they are able to maintain electric reliability. Over 90% of the utilities in states where we operate, rely
on migrant crews to help manage their right of ways.
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Our company has over 50 U.S. employees that manage our H-2B crews, and perform sales or administrative tasks that keep our company running. We are one of
the largest employers in our community and use the services and products of many
local and regional businesses. This year alone we will purchase over 30 additional
trucks to transport our workers; adding to our existing fleet of 116 company-owned
vehicles.
We have been using H-2B workers for over 20 years, and many have been with
our company almost that long. The vast majority of our workers return year after
year and new workers are typically family members of those who work for us. We
have never used the services of recruiters in Mexico. In fact, many of our current
employees tell us they have several relatives who would be willing to accept work
with us because of their desire to find safe and legal employment in the U.S. Few,
if any of our employees, have expressed any desire to stay permanently in the U.S.
Rather, they are happy to come to the U.S. on a temporary visa for 6 months of
work and then return to their families with the money they have saved during their
employment. They use their earnings to improve and enrich their families, farms,
and communities in their homeland.
Over the past several years, navigating the administration process to obtain H2B workers has been extraordinarily difficult, burdensome, and costly. We have
spent hundreds of thousands of dollars in legal and administrative fees just to get
through the overly bureaucratic process that is the H-2B program. Twenty years of
documented history shows that there are virtually no U.S. workers interested in
doing this job, yet every year, we begin the year not knowing if we will be able to
have H-2B workers certified by the Department of Labor. The stress and uncertainty causes great harm to our company, our employees who depend on us for their
livelihood, and our vendors who provide over 12 million dollars in goods and services
to our company.
If implemented, the DOLs proposed new wage rule and new program rule (currently on hold because of a court order) will cause irreparable harm to all H-2B employers and to our U.S. workforce. Additionally, we continue to face difficulties with
the DOL that specifically affect our industry. Recently, DOL has suddenly taken a
new position wherein they are attempting to prevent us from employing H-2B workers at multiple worksites, despite the fact that the very nature of our work is migrant and requires work at multiple worksites. In fact, that is the basis of our entire
company and we have been approved by DOL to perform work in that manner for
as long as we have been in the H-2B program.
DOL has traditionally processed our workers under forestry-related job codes and
allowed us to apply for workers under the Departments special procedures for forestry-related work. In recognition of the unique work requirements of migrant employers, which are different from fixed site employers, the special procedures allow
an employer to file an application that includes multiple work locations where work
will be performed along a tentative itinerary. Recently, and inconsistently, the DOL
has arbitrarily determined that we should not perform work in this manner. Instead, they have at times suggested that we should be classified as something like
a groundskeeper, which would mean that rather than filing a few applications per
year, we would be forced to file nearly a hundred separate applications for each and
every separate piece of land where we will work. Aside from the bureaucratic nightmare of so much paper, that process would be logistically impossible because our
work crews are constantly on the move and government paper processing, which requires weeks and months, would never be able to keep up. Working in migratory
patterns based on weather and working on an itinerary is an essential aspect of the
services we provide. Thus far, we have been able to continue our operations, but
after several years of correspondence and meetings with the DOL, these issues are
still not definitively resolved.
We are prepared to meet with the DOL in good faith with hopes of finding a solution to this problem, but we are concerned about the lack of progress and all of the
other uncertainty that surrounds the H-2B program. Our company and our industry, is dependent upon a workable H-2B program that provides a stable regulatory
environment appropriate to the work we perform. Many businesses like ours provide
employment and security to many, without negatively impacting the U.S. labor market. We hope that members of the Committee will keep these concerns in mind as
they consider immigration reform legislationand particularly the need for a workable lower-skilled guestworker programduring this Congress.
For the committees reference, I have attached a copy of a report describing the
type of work performed by our industry. Thank you for your consideration.
Sincerely,
MICHAEL ECONOMOPOULOS.
61
H2B WORKFORCE COALITION
Protecting American Workers Through a

Stable and Reliable Seasonal Workforce
www.h2bworkforcecoalition.com
PRINCIPLES FOR COMPREHENSIVE IMMIGRATION REFORM
About the H-2B Program

The H-2B program is essential for seasonal businesses that cannot fill temporary jobs with American workers despite intensive recruitment efforts. Seasonal
non-agricultural industries that use the H-2B program include seafood processing,
food processing, horse training, restaurants, hotels, forestry, landscaping, carnivals
and amusement parks, and stone quarries. Because the program is expensive, timeconsuming and involves four government agencies, employers only turn to the program if they are unable to find legal local workers.
The H-2B program is important to American workers whose year round positions are reliant upon seasonal laborers during peak seasons. In companies that use
the H-2B program, both American full time and H-2B temporary seasonal workers
are well compensated; often well above the federal minimum wage and the prevailing wage.
For H-2B workers, the program provides well-paying seasonal jobs that allow
them to provide for their families and still maintain their homes in their native
countries. Many of these workers voluntarily return to the same employer year after
year.
The H-2B program is important to the U.S. economy. Without access to a legal
source of seasonal labor, employers will be forced to lay off American workers, scale
back on vehicle, equipment and supply purchases and perhaps even close their businesses.
Immigration Reform Principles
Immigration reform must maintain a viable seasonal worker program along the
lines of the existing H-2B program for non-agricultural workers.
Immigration reform should maintain the current protections for American and
H-2B workers and not impose costly burdensome new requirements on employers
who use the H-2B program such as those created under the temporarily blocked Department of Labor wage methodology and program rules.
Wage rates required to be paid to H-2B and similarly employed American workers shall be based on economic realities and local markets. Wage rates should not
be based on arbitrary formulas that are well above wage rates paid in the local
labor market.
The H-2B returning worker exemption should be re-instated and there should
be an expedited process for consular visa processing for H-2B returning workers.
The number of participants in the program should be market-based, allowing
the number of participants to fluctuate up or down based on economic needs.
Immigration reform should provide sufficient resources for federal agencies to
process H-2B applications in a timely manner. States should have an appropriate
role in program administration.
H-2B applications should not be released to the public to protect the confidential business information submitted by employers and to prevent the businesses
from being harassed by outside organizations.
The Coalition supports strong enforcement of all the program rules, including
the increased security procedures at US State Department consulate offices. Employers will continue to notify officials when they become aware of workers that may
have not complied with the terms of their visas.
Prepared Statement of ImmigrationWorks USA
Whats the most important piece of comprehensive immigration reform you never
heard of? Its fixing the legal system so it works for the futurefor immigrants and
for the U.S. economy.
Many Americans think reform is about the 11 million unauthorized immigrants
already living in the United States. Many have been here for years and have put
down roots. Were not going to deport themnot even the harshest restrictionists
think thats practical. Nor are most likely to go home voluntarily, no matter how
difficult we make their lives with tough enforcement. For the overwhelming majority, America is home by now. And they are sure to be the most contentious issue
as the immigration debate heats up in months to come.
62
But most contentious is not the same as most important.
What most people dont stop to ask: what created this problem in the first place?
Exactly what is it about the broken immigration system that produced this vast underground world of workers and familiesa population the size of Ohio?
The root cause: for less-skilled foreigners who want to come to work legally in the
United States, there is no line to get in or wait inno visas available for workers
like them.
The two existing programs for low-skilled temporary workers are for seasonal
labor only: farmhands, landscaping crews, summer and winter resort workers. There
are virtually no permanent visas for less skilled workers. So there simply is no avenue for an uneducated Mexican unless he has family members living legally in the
U.S. who can sponsor him for a family visa.
Many, if not most, of the 11 million already here would have preferred to enter
the country legally if that were possible. But they and others like them have no lawful option.
This wouldnt be a problem if we didnt need immigrant workers. But we do. And
were going to need them increasingly as the economy recovers.
This isnt because American workers are somehow lacking or inadequate. On the
contrary, for the most part, its because Americans are doing better than in decades
past. Were becoming better educated and aspiring to the kinds of jobs for which
our better educations prepare us.
In 1960, half of the native-born men in the labor force were high school dropouts
happy to do physically demanding, low-skilled work. Today, less than 10 percent of
the native-born men in the labor force are high school dropouts. And meanwhile,
far from shrinking, the demand for low-skilled labor is growing over time. In 1955,
for example, 25 cents of every dollar spent on food was spent in a restaurant. Today,
the figure is nearly 50 cents. And one of the fastest-growing occupations in America
is home health aide.
But very few Americans with high school diplomas aspire to careers as busboys
or home health aides. And they shouldnttheir educations equip them to do more
productive work, making better wages and contributing more to the economy.
U.S. demand for immigrant workers eases somewhat in a down economyand far
fewer workers want to come to the U.S. when jobs are scarce. But even then, we
still need some foreign labor, and those workers need a legal way to get here.
The lesson for policymakers: whatever program we create needs to be flexible,
growing in good times to accommodate rising labor needs and shrinking in down
times when demand subsides.
To be clear, the goal of reform is not to increase the overall number of unskilled
immigrants entering the country.
Whats needed is to end illegal immigration by creating ways for needed workers
to come legallycreating worker visas and establishing a program that allows employers who cant find enough willing and able Americans to connect easily and
quickly with lawful immigrants.
This is not just an economic imperative. Without it, there can be no successful
immigration law enforcement.
Even the best, most effective enforcement is no match for the dynamism of the
U.S. economy. As long as there are jobs available, foreigners will want to come to
work here. And if we want to prevent them from coming illegally, we need to create
lawful alternatives.
Finding a solution for the 11 million unauthorized immigrants already in the
country addresses the mistakes of the past but fixes nothing going forward. Unless
we create ways for the immigrants of the future to enter legally, were going to find
ourselves in exactly the same predicament a decade or two down the roadwondering what to do about 10 or 20 million unauthorized immigrants living among us
but beyond the rule of law.
The only way to prevent this: a legal immigration system that worksnot just
an answer for the 11 million and tougher enforcement, but a way for the workers
we need to keep the economy vibrant and competitive to enter the country and work
legally.
ImmigrationWorks USA is a national federation of employers working to advance
better immigration law. The network links major corporations, national trade associations and 25 state-based coalitions of small to medium-sized business owners concerned that the broken immigration system is holding back the nations economic
growth. Their shared aim: legislation that brings Americas annual legal intake of
foreign workers more realistically into line with the countrys labor needs.
63
Why business needs immigrant workers
On March 1, 2013, ImmigrationWorks sponsored a briefing for congressional staffers: a panel of employers from across the U.S. explaining their reliance on immigrant workers. Panelists included a Georgia restaurateur, a manager of Colorado
vacation rentals, a senior vice president at a large Midwest hospital and the vice
president of a Maryland construction company. They explained the kinds of jobs
available at their businesses, the wages they offer, how they try to hire Americans
and how immigrants help them keep their operations running and contributing to
the economy.
Employers who hire immigrants believe the most important piece of the immigration puzzle is fixing the system so it works for the future. That means creating a way
for the high- and low-skilled immigrants we need to keep the economy vibrant and
competitive to enter the U.S legally and work.
Moderator TAMAR JACOBY, President,
ImmigrationWorks USA.
Most Americans apply for front-of-the-house positions. The few who do apply for
jobs as cooks and dishwashers usually last only a few days and then quit. Back-ofthe-house jobs are very toughslippery floors, hot fryers and a fast pace all day long.
We rely on immigrants to fill our back-of-the-house jobs.
TAD MITCHELL, Owner,
Six Feet Under restaurants.
We cant find enough Americans to fill jobs in housekeeping, dietary and other departments in the hospital. If it werent for the Bosnian refugees, we wouldnt have
a housekeeping department.
JOE LEVALLEY, Senior vice president of planning and advocacy,
Mercy Health Network.
We place job ads in the paper and on the internet. We go to job fairs and prisons
to find ex-offenders who are willing to work. But we cannot find enough American
workers. Nearly 80 percent of our 1,500 workers are immigrants. Its hard to find
qualified workers. The job is labor intensive and the working conditions are tough
its cold in winter and hot in the summer. We work early and late.
OTTO GIRR, Vice president of human resources,
Miller & Long Concrete Construction.
There has been a dramatic shift in our workforce. Thirty years ago, our workers
in housekeeping were all Americans. Today they are all Hispanic. No American has
applied for a housekeeping job at my company for more than 15 years. Even in the
downturn, weve placed ads in the paper for jobs paying $17 an hour and no one
applies.
DALE BUGBY, Owner,
Vail Resort Rentals.
The EB-5 investor visa application is 4,000 pages. Its extremely difficult and you
get the feeling after a few months that the government is trying to discourage you
from obtaining the visa. Many people dont apply because the administrative process
is too onerous.
NICHOLAS LOGOTHETIS, Board member and senior advisor,
The Libra Group.
Prepared Joint Statement of Sabeena Hickman, CAE, CMP, Chief Executive
Officer, Professional Landcare Network (PLANET); and Michael V. Geary,
CAE, Executive Vice President, American Nursery and Landscape Association (ANLA)
Chairman Walberg, Ranking Member Courtney, and members of the Subcommittee on Workforce Protections, thank you for the opportunity to provide comments on the H-2B program, which is crucial to the landscape industry. The Professional Landcare Network (PLANET) is the national trade association representing
more than 100,000 landscape industry professionals, who create and maintain
healthy, green living spaces for communities across America. PLANET members are
committed to the highest standards in industry education, best practices and business professionalism. Many of PLANETs professionals have attained the status of
becoming Landscape Industry Certified, achieving the greatest level of industry expertise and knowledge.
64
Founded in 1876, the American Nursery & Landscape Association (ANLA) is the
national trade association of the vertically-integrated nursery and landscape, or
green industry. ANLA membership comprises over 10,000 affiliates that grow
nursery and greenhouse plants, sell lawn and garden products, design, install, and
care for landscapes, and sell supplies to the industry. Typical members include
growers, garden center retailers, horticultural distributors, landscape professionals,
and suppliers to the industry. A number of firms are engaged in more than one of
these operations.
The H-2B program provides a vital and legal source of seasonal labor for the landscape industry and other industries that cannot fill their labor needs with American
citizens. Employers who turn to the H-2B program do so as a last resort. The landscape industry is one of the major users of this program because the industry requires numerous workers during the busy spring and summer seasons. Employers
are unable to attract significant numbers of American workers for these labor-intensive, short-term, seasonal jobs. Because of the seasonal nature of the industry, traditional sources of manual labor, such as college students, are not available, and the
heavy machinery used in the business prohibits companies from hiring high school
students. Before they even apply for H-2B workers, companies go through an intensive recruitment period in an attempt to hire Americans and must prove that they
cannot find Americans to take the jobs. They would gladly hire American workers
if they could.
The landscape industry is a large contributor to the U.S. economy. The industry
is composed mostly of small businesses, the engine that drives the U.S. economy.
According to the Economic Impacts of the Green Industry in the United States publication by the University of Florida and Texas A&M University, the economic impacts for the U.S. Green Industry in 2007 were estimated at $175.26 billion (Bn)
in output, 1,949,635 jobs, $107.16 Bn in value added, and $53.16 Bn in labor income
(these values are expressed in 2007 dollars). The largest individual sector in terms
of employment and value-added impacts was landscaping services (1,075,343 jobs,
$50.3 Bn). When the landscape industry cannot get the H-2B workers it needs, the
economic losses have a multiplier effect to suppliers and other jobs throughout the
economy.
According to 2007 estimates, approximately 2,800 landscape companies participate in the H-2B program and spend about $77.28 million annually just on landscape equipment. In addition, they spend approximately $115.36 million annually
on fleet vehicles, $2.8 million on payroll services, $6 million annually on computers,
$4.3 million annually on tires, and $13.6 million on cell phones and wireless radios.
Without the H-2B workers, not only will these landscape companies suffer, supplier
companies will feel the economic downturn as well.
According to the U.S. Department of Labor Bureau of Labor Statistics, grounds
maintenance workers held about 1.3 million jobs in 2010. Employment of grounds
maintenance workers is expected to grow about 20 percent between 2010 and 2020.
Grounds maintenance workers will have among the largest numbers of new jobs
(around 254,600) arise over this 10-year period. There will be an increased need to
fill these jobs. The H-2B program is the only legal way that employers can fill these
seasonal jobs.
Unfortunately two pending Department of Labor (DOL) regulations would make
the program virtually unusable for seasonal employers. Further, the program contains an arbitrary 66,000 cap (33,000 for each half of the fiscal year) on the number
of H-2B workers permitted to work in the United States each year. As the economy
begins to recover, this low cap could threaten to shut many landscape companies
out of the program, as was the case in 2007 and 2008 when Congress allowed the
H-2B returning worker exemption to expire and the economy was still strong. A
workable H-2B program is vital for seasonal employers and their permanent American workers whose jobs require the support of seasonal laborers.
For the H-2B workers, the program allows workers to provide for their families
in their home countries and contribute to the economic development of their communities. Further, the returning workers have proven repeatedly that they will not
overstay their visas by returning to their native countries promptly after the completion of their seasonal work assignments.
H-2B workers are well compensated and receive the same wages as Americans
would if they applied for and accepted these jobs. The U.S. Department of Labor
surveys companies in the geographic area of the employer to see what the industry
currently pays workers doing similar jobs and thus sets a minimum variable wage
rate per hour. This prevailing wage is always well above the federal minimum wage.
Further, many companies pay their employees even more than is required by the
Department of Labor.
65
Unfortunately, DOL has targeted the H-2B program, and by extension those lawabiding employers that are forced to utilize it, for virtual elimination with punitive
rules. A January 19, 2011 DOL rule seeks to artificially increase wage rates for the
H-2B workers well above rational economic levels. According to DOLs own estimates, the rule will increase H-2B wages in the landscape industry by $4.32 per
hour. The actual cost to employers will be much higher than DOLs estimate since
DOL fails to account for wage increases for similarly employed American workers
or more experienced American workers whose pay should reflect their greater skill
or expertise level. The DOL estimate also does not include additional payrolls costs,
workers compensation insurance, overtime costs and other associated increases.
Luckily, Congress has blocked this rule from taking effect through fiscal 2012 appropriations legislation and subsequent continuing resolutions. We hope Congress will
continue to block the regulation after the current continuing resolution expires on
March 27.
DOL promulgated another harmful rule on March 18, 2011 that would make the
program even more costly and complicated. The rule was so egregious that a federal
court in Florida issued a temporary injunction against it. In addition, both the Senate Committee on Appropriations and the House Committee on Appropriations approved legislation during the 112th Congress that would have blocked the rule from
being implemented, but Congress adjourned without passing that appropriations
bill. We urge Congress to prevent the implementation of this rule, along with the
wage rule.
It is clear that the intent of these rules is to ensure that the H-2B program is
made unusable, threatening Americas seasonal businesses and their full-time employees. In these challenging economic times, the U.S. economy can ill afford the severe economic impacts associated with the loss of American jobs and commerce that
are supported by the landscape industry and other seasonal industries that use the
H-2B program.
DOL has suggested that these rules are necessary because of employers who
abuse the program. However, there is no evident to support the allegation of widespread program abuse. Many landscape contractors have been using the program for
more than five years. They are good employers who use a lawful program and treat
their workers well, as is evidenced by the fact that the same H-2B employees return
year after year. As companies grow, these workers often refer relatives and friends
to the employer. For fiscal year 2007 through fiscal year 2012 there were 377,256
visas issued by the State Department under the H-2B program; yet the allegations
made about systemic program abuse relate to only a few specific employers. There
will always be a few bad individuals who abuse federal programs. They should be
fully prosecuted under the law. ANLA and PLANET support the strong enforcement
of program abuses.
Most landscape industry businesses assist their H-2B workers with finding places
to live, transportation to work, and other living necessities for roughly 10 months.
Many rent or own apartments for their employees, provide free English language
classes, and a means of transportation to stores, churches, and more. Our industry
uses these workers year after year, so they want them to be successful in their jobs
and have positive experiences. After their first year of the job, returning workers
often refer friends and relatives to the employer because of their positive experiences and the great opportunity that the H-2B program provides.
Further, the H-2B program is expensive. Employers only turn to the program
after exhausting efforts to find and retain American workers. An H-2B employer has
to pay a $325.00 application fee, a $150.00 anti-fraud fee, and a $1,225 premium
processing fee (all do so they are not put at the end of the line of applications) to
U.S. Citizenship and Immigration Service. The cost for newspaper advertising for
local workers can average around $600.00. Because of the paperwork involved and
the need to find workers, the large majority of employers hire a company to help
them with processing. This fee can range from $3,000 to $5,000. So an employer can
spend between $5,070 and $8,470, which does not include any other expenses spent
on the specific employees. Further, these employers are paying both the American
and H-2B workers prevailing wages, which are often well above the minimum wage.
While incurring these expenses, H-2B employers are sometimes competing against
companies that do not pay these fees and wages because they do not share their
commitment to retaining a legal workforce.
As Congress debates immigration reform legislation, we urge you and your colleagues to preserve a workable H-2B program free from an arbitrary cap that restricts economic growth and free from the types of regulations that the Department
of Labor has promulgated. Wage rates should be based on economic realities and
local markets and not arbitrary formulas well above wage rates in the local labor
market. We also encourage the re-instatement of the H-2B returning worker exemp-
66
tion with the number of participants in the program being market-based allowing
for much need flexibility.
In addition, we support the development of a non-seasonal temporary worker program for businesses whose labor need are non-seasonal. While most landscape industry jobs do have a seasonal component, there are some areas of the country
where landscaping can be done year-around. Further, some seasonal employers may
have a few year-round positions that they cannot fill will American workers.
In conclusion, ANLA and PLANET urge Congress to pass legislation continuing
to prevent the US Department of Labor from implementing its wage methodology
beyond March 27, 2013, as well as legislation preventing DOL from implementing
the H-2B program rule. We would also like to see Congress address the arbitrary
H-2B cap by re-instating the H-2B returning worker exemption and allowing the
number of H-2B workers admitted to the U.S. each year to be based on market demand rather than an arbitrary cap. If the DOL regulations are allowed to go into
effect, small businesses, American workers, H-2B workers, and the overall U.S.
economy will suffer. The U.S. economy cannot afford the severe economic impacts
associated with the implementation of these regulations. Further as the economy
grows, Congress must address the H-2B cap so that small and seasonal businesses
will have access to the H-2B workers they need to grow and create additional American jobs.
UTILITY SPRAYER ALLIANCE [OCTOBER 2012]
Migrant Spray Industry Report

General Information and History of the Migrant Spray Industry
Note: Although we believe the industry information presented is generally consistent throughout the continental United States, our facts are derived primarily from direct experience and
research in the Greater South Eastern United States as depicted.
The Migrant Spray Industry is an offshoot and evolution of the migrant reforestation industry (see attachment Low Volume Backpack ApplicationA Short History).The practices employed by migrant spray crews did not exist commercially
until the mid-1980s and was born out of a combination of new low volume backpack
herbicide application technology and an available workforce capable of performing
this migrant and labor intensive task (H-2B forestry workers). Prior to the development of this industry, vegetation management was performed with heavy machinery, helicopters or other nonselective application methods.
In the last decade, low volume backpack application has become the primary
means of controlling brush on electric utility rights of ways and has become an essential method used by utility companies to ensure electric reliability. The attached
document, The Importance of Backpack Herbicide Treatments for Integrated Vegetation Management Programs, describes in detail the unique and beneficial aspects
of migrant spray operations. In summary, these benefits include:
The selective spraying of individual undesirable target species that pose a hazard or danger of nuisance
The preservation of species that are endangered, are beneficial as pollinators,
establish wildlife habitat, and are competitors to undesirable vegetation
Increased safety and low impact on the environment with substantially reduced
amount of product applied, as compared to other vegetation management methods
More effective and efficient compliance with governmental regulations, including FERC, NERC and the Clean Water Act.
Improved cost effectiveness of utility operations, which benefits consumers
According to recent study commissioned by an Arkansas Electric Cooperative and
conducted by an independent engineering firm, the projected cost savings by using
an Integrated Vegetation Management Program as compared to traditional mechanical methods was expected to be over $50 million dollars. Document attached.
Electric Utilities Rely on Migrant Sprayers
More than 80% of all Electric Utility Companies within the Greater South Eastern United States use low volume backpack application by migrant sprayer crews
as a major part of their vegetation management program. These crews perform the
same type of work using the same workforce as is used in vegetation management
on forest lands, other rights of way, industrial sites and public use areas. More than
2000 H-2B workers are employed by fifteen or more Forestry and Utility Spray companies that annually treat more than 1,000,000 acres for electric utilities.
Electric Utility Companies fall into two broad categories:
Large transmission companies deliver electricity to distribution companies via
high voltage electric lines across multi-state areas. Although most of these compa-
67
nies are investor owned, one of the largest, The Tennessee Valley Authority, is a
government agency. It operates over 16,000 miles of line across 7 states and serves
over 9,000,000 people. TVA alone treats over 60,000 acres annually using spray contractors who employ H-2B workers.
Private companies of similar size include Duke Energy, the Southern Company,
American Electric Power, Inc. and others. These companies are regulated by the
Federal Energy Regulatory Commission (FERC) and the North Regulatory Electric
Reliability Corporation (NERC) who mandate brush control specifications to maintain electric reliability across the U.S and North America.
Distribution companies deliver electric power to individual customers. In the
Greater South Eastern Region, the majority of these companies are Rural Electric
Cooperatives (REC), which are not-for-profit entities owned and managed by the
members they serve. Typically, an REC will serve multiple rural counties or regions
within a state. There are also investor owned and municipal entities that provide
electricity and contract brush clearing and spraying to companies that utilize H-2B
workers.
The Logistics Associated with Electric Utility Spray Contracts
Although utilities typically establish general annual plans for treating vegetation
along specific power lines, many factors can affect the timing and substance of the
utilitys decisions, including:
ongoing surveys of vegetation growth, and analysis of what lines are in most
need of treatment
budget availability, which is often determined by the revenue from electric sales
in the previous year or fiscal quarter
mandated treatments to meet FERC and NERC compliance
local weather conditions
obtaining approval from Public Service Commissions or other governing bodies
The final decision about what specific areas will be treated is frequently not made
by the utility until shortly before the work is to start.
Although some utility companies negotiate their work with a preferred vendor or
have multi-year contracts in place, a majority of utilities put their intended work
out for bid and contract with a vegetation management company on an annual
basis. It is not unusual for final contracts to be awarded to vendors just prior to
the commencement of work. It is also not unusual for the scope of work to be
changed (increasing or decreasing application areas) after the contract has been
awarded in response to the factors described above.
Typically, a utility company does not impose a strict time frame defining the when
the work is to be accomplished, other that it must be performed during the growing
season, which may range from April to October, depending on geographical location
and seasonal weather conditions. There are many times, however, when weather
dictates when the work can and cannot be performed. Drought, rain, flooding, late
or early frosts all impact the growing season and can affect and alter work schedules.
The Difficult Nature of the Work
Migrant spraying is labor intensive work that requires workers to walk up to 10
miles per day, regardless of whether the application takes place on forested land,
along roads, trails, or rights-of-way. The work is almost exclusively conducted in remote locations far from major roads or towns. Because the vegetation removal occurs during the growing season in the southeastern U.S., the weather is typically
hot and humid. The worker must cover this rough terrain carrying a backpack
sprayer that weighs as much as 35 pounds, identify target species and apply herbicide. Workers also frequently carry and operate other hand and power tools to remove vegetation.
The Seasonal and Migrant Nature of the Work
Low volume foliar application can only be performed during the growing season
and by its nature is a seasonal activity. Typically the work takes place over 8-10
months, depending on geography and weather. Depending on the type of treatment,
application can occur at different times during the year. On a calendar-year basis,
application of pre-emergent or early post-emergent herbicides typically begins in
late winter/early spring (February-March) depending on the locale and application
needs. There are some dormant stem treatments that can take place either late fall/
early winter (October-November). However, the overwhelming majority of work performed by Migrant Sprayers consists of post-emergent herbicide application occurring from the spring through the fall.
Decisions by utility companies about what power lines to spray, the selection of
contractors through the bid process, and changes to the scope of work due to weath-
68
er, budgets or mandates make advanced scheduling with precision impossible. Spray
crews must be flexible in order to respond to these variables and serve the utility
industry.
Large transmission utility companies may have work in multiple states, with
power lines spanning hundreds of miles, requiring the movement of crews to different locations multiple times during performance of the contract. Larger regional
distribution utilities may cover a wide geographical area and require similar movement. Contracts with smaller distribution utilities can often be performed from a
single location, but a typical contract only lasts a few weeks and the crew then
moves to another location to perform work on another contract. A typical crew might
move locations a dozen or more times across several states performing work on several contracts during a single season.
Historical H-2B Certification of Migrant Sprayers
For over two decades the Department of Labor (DOL) had been processing H-2B
applications for migratory workers that perform vegetation removal with DOT Job
Code 459.67-010 Title: LABORER, BRUSH CLEARING (any industry).
When DOL switched to using O*NET for job classifications, applications for these
workers were often processed with the O*NET Code 45-4011, Forestry and Conservation Worker.
Under either code, however, DOL processed H-2B applications for these migrant
workers on an itinerary pursuant to TEGL 27-06, Forestry-related Special Procedures, regardless of whether the brush clearing activities were performed on tree
plantations or along rights-of-way, trails, roads, or railroad tracks. In addition, these
employers that operated under TEGL 27-06 also complied with the Migrant and
Seasonal Agriculture Worker Protection Act (MSPA) requirements applicable to forestry workers.
However, in recent years when some employers requested prevailing wage rates
for this work under the 45-4011 job code, the DOL sometimes returned wage rates
for 37-3012 job code, Pesticide Handlers, Sprayers, and Applicators, Vegetation.
Some employers who then submitted applications for H-2B workers using the 373012 job code provided by DOL were subsequently certified under the Forestry-related Special Procedures without question. These employers submitted master applications, itineraries and proof of MSPA compliance. But other employers certified
with the 37-3012 job code for the same work were not permitted to work on an
itinerary pursuant to the Forestry-related Special Procedures and thus were not required to comply with MSPA.
Still other employers applying with 37-3012 job code provided by DOL for work
that included utility right-of-way spraying were provided the option by DOL to utilize TEGL 27-06, if the employer provided additional information about the work
itinerary and evidence of compliance with MSPA.
Currently a portion of the industry is working under the 45-4011 code, while others work under the 37-3012 code. Of those working under the 37-3012 code, some
are working pursuant to TEGL 27-06, while others are not. Regardless of the Departments inconsistent processing and guidance, however, this work is still migratory in nature even if the employer is not operating on an itinerary.
Rarely, if ever, would an employer have only one contract in a growing season to
remove brush in just one localized area. That arrangement would not be a sustainable business model because of the significant capital investment required to perform this work. There is limited work available in any particular localized remote
area and that work only lasts for a few weeks, at most. Thus, it would impossible
for a vegetation removal company to stay in business for long if it performed only
one contract for a few weeks each year. The very nature of this business requires
scheduled movement from one contract to the next throughout the growing season
in order to provide the maximum amount of work for the company and its U.S. and
foreign employees.
Job Categories Associated with Migrant Spraying
Within the industry, there are typically 4 categories of workers associated with
vegetation removal that includes spraying. Below are brief sample descriptions of
each position category from the lower skill level to the higher skill level:
Migrant Sprayer / Laborer / GroundsmanAn entry level, labor intensive position. No experience or minimum education necessary but must be able to identify
species of vegetation and apply herbicide properly after training period. Wears backpack and removes brush through various means, including spraying.
Team Leader / Senior GroundsmanA minimum one year experience or equivalent education is required. Employee must have valid drivers license and good driving record to transport workers. Mixes herbicide with supervision, supplies herbicide
69
mixture to sprayers, keeps spray equipment in working order, and maintain daily
records. Employee works under direct supervision of Crew Foreman.
Crew ForemanExperience as a Team Leader or equivalent education or work
history. Responsible for the oversight of two to four Teams (multiple teams make
up a crew) with each team typically comprised of a Team Leader and five or more
Sprayers/Laborers/Groundsmen. Supervises all aspects of field operations, maintains
detailed reporting, and performs other tasks at the direction of a Manager.
ManagerTypically requires formal education or related experience and licensing
pursuant to State and/or Federal requirements. Manager is responsible for the oversight of multiple Crews. Manager must possess good communication skills to deal
with public and customers. Ensure that crews meet quality/safety standard and
complies with applicable State and Federal regulations relating to herbicide application.
Sample Job Descriptions
Although there is presently no O*NET job description for this position, the actual
job encompasses virtually the entire description of 45-4011, and could be said to also
include a few of the tasks from 37-3012. The following hybrid descriptions would
fairly describe how these jobs operate in practice.
1. Sample Job Description of Migrant Sprayer
Under supervision, perform manual labor necessary to clear vegetation, including
applying herbicides through sprays, granules, or other chemical application on target trees, shrubs, weeds, vines or grasses on areas such as utility rights of way,
highway roadsides, rail road rights of way, forested areas, woodlands, industrial
sites, wetlands, and rangelands to control unwanted (target) vegetation. May also
use other hand tools to cut, kill or remove vegetation.
This is a seasonal position beginning in spring and ending in the fall, lasting approximately 8-10 months, based on seasonal conditions. Work is typically 5 to 6 days
per week, with some overtime may be required based on weather conditions, crew
schedules and contract provisions.
Sample of job titles: Brush Clearer, Forestry Worker, Utility Sprayer, Herbicide
Applicator, Spray Technician, Laborer, Ground Crewman
MINIMUM REQUIREMENTS FOR MIGRANT SPRAYER
Must be 18 years old

No minimum education required
Must successfully complete one week training session or have previous equivalent experience
May require State or Federal certification with company to provide paid training to pass certification tests
Must be physically able to perform outdoor work
Carry approximately 35 pounds (back pack) and traverse difficult terrains
(steep, rocky, brushy) walking up to 10 miles per day
Be able to work in adverse weather conditions (primarily hot and humid)
After two weeks be able to meet minimum production standards
Safely operate tools and equipment, including power tools
Must be able to travel with crew to various multi-state locations continuously
during spray season
PRIMARY TASKS FOR MIGRANT SPRAYER
Identify target vegetation and spray proper amounts of herbicide on leaves and/
or bark.
Use machete to treat target vegetation too tall or large to spray with backpack,
by making cuts in trees at specified intervals and spraying proper amounts of herbicide mix in cuts with spray bottle.
Check equipment to ensure that it is operating properly.
Fill backpacks with premixed herbicide mixture.
Work in coordination with crew to ensure proper coverage of assigned areas.
Take all precautions necessary to prevent spray drift and/or damage to all nontarget species or areas
Follow all guidelines, procedures and training to maintain a safe operation and
prevent injury or damage to self, other persons and/or the environment
Clean and store equipment properly at end of work day.
PRIMARY TOOLS & EQUIPMENT FOR MIGRANT SPRAYER
Backpack sprayer
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Machete
Spray Bottle
Personal Protective Equipment that may include gloves, glasses, uniforms, or
other equipment
SECONDARY TASKS FOR MIGRANT SPRAYER
Cut or remove vegetation using brush saws, chain saws or other hand tools
Use power sprayers to treat target brush with proper amounts of herbicide mixture
Connect and pull hoses associated with power sprayers
Start motors and engage pumps on power sprayers
Clean, service and maintain power sprayer, pumps, motors and related equipment
SECONDARY TOOLS AND EQUIPMENT FOR MIGRANT SPRAYER
Chain saws
Brush saws
Power sprayers
KNOWLEDGE, ABILITIES AND SKILLS FOR MIGRANT SPRAYER
After training, worker must have the ability to identify target species
After training, worker must have the ability to identify non-target areas
Worker must be able to follow basic instructions
After training, worker must be able to operate and maintain basic hand tools
associated with job, including power tools
Worker must have the manual dexterity to operate tools
Job requires worker to be dependable, responsible and reliable for fulfilling job
obligations
This is an entry level, manual labor activity for which all necessary knowledge,
ability and skill can be reasonably achieved during an initial one week training period and an additional two weeks of on the job training.
ADDITIONAL INFORMATION REGARDING SPECIFIC INDUSTRY TASKS
Workers primary task is to selectively spray, cut, treat or otherwise remove unwanted vegetation, referred to as target vegetation, while preserving desirable
vegetation that is environmentally, commercially, aesthetically or otherwise beneficial.
For electric utility companies, workers will selectively control tall growing vegetation that will interfere with electric lines and affect electric reliability or otherwise
impede access on rights of ways while not damaging low growing shrubs, grasses
or other desirable vegetation, beneficial for wildlife and the environment.
On highway roadsides, workers will selectively control brush and tall growing
weeds that create safety hazards by obstructing view, while preserving beneficial
low growing grasses that prevent erosion.
In natural areas, rights of way, forests, rangelands, wetlands and on other sites,
workers will selectively control invasive species and noxious weeds that pose a hazard to the ecology.
On forested land, workers will selectively control those weed and tree species that
adversely impact the growth of desirable timber.
On all sites and in all industries, non-target areas shall include
1. Agricultural crops
2. Fruit trees, ornamentals, and other vegetation in maintained yards unless specifically instructed otherwise
3. Any area not specifically permitted on the herbicide label or by State or Federal
Regulation
4. Residential or public use areas unless specifically instructed otherwise
2. Job Description for Migrant Sprayer Team Leader
In addition to the job description for Migrant Sprayer, a Migrant Sprayer Team
Leader shall perform the additional tasks and possess the additional knowledge,
abilities and skills as listed below:
MINIMUM REQUIREMENTS FOR MIGRANT SPRAYER TEAM LEADER
Have, obtain, and maintain a valid drivers license and meet DOT driving requirements
Must have and maintain a good driving record
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Have, obtain, and maintain a valid FLCE license

Successfully complete Driver Safety Training course
Minimum one years experience as Migrant Sprayer or equivalent
Must be physically able to perform job functions
PRIMARY TASKS FOR EQUIPMENT FOR MIGRANT SPRAYER TEAM LEADER
Transport assigned crew to designated work locations

Mix pre-set herbicide mixtures for application
Keep Migrant Sprayers supplied with herbicide mixture throughout the day
Communicate with crew and provide information as requested
Follow mapped locations to determine daily spray routes
Assist foremen with daily application reports, crew time logs and additional information as needed
Maintain vehicle in safe, working order
PRIMARY TOOLS & EQUIPMENT FOR MIGRANT SPRAYER TEAM LEADER
Cell phone and/or two way radio

Herbicide mixing equipment
Company vehicle
KNOWLEDGE, ABILITIES AND SKILLS FOR MIGRANT SPRAYER TEAM LEADER
Must be able to maintain/complete various forms required for daily herbicide

application reports and for daily driving logs required by US Department of Transportation
Must be able to read and follow a map
Ability to receive instructions from foreman and relay to crew
Must be able to administer first aid
3. Job Description for Migrant Sprayer Crew Foreman
In addition to the job description for Migrant Sprayer and Migrant Sprayer Team
Leader, a Migrant Sprayer Crew Foreman shall perform the additional tasks and
possess the additional knowledge abilities and skills as listed below:
MINIMUM REQUIREMENTS
Must
Must
Must
Must
Must
be able to effectively communicate with customers, office staff and teams

be able to manage multiple Teams (Crews)
have basic knowledge of math
be computer literate
be able to operate independently when not directly supervised by manager
PRIMARY TASKS
Complete electronic daily and weekly reporting

Coordinate Crews, assign map segments to Team Leaders
Maintain herbicide inventories at job sites
Provide on-site training to Crews as needed
Perform quality control and safety audits, maintain quality and safety standards and compliance with applicable State and Federal Regulations
PRIMARY TOOLS & EQUIPMENT FOR MIGRANT SPRAYER TEAM LEADER
Computer and GPS Equipment

KNOWLEDGE, ABILITIES AND SKILLS
Must be able to create work schedule and meet production standards based on
weather, holidays, customer demand, regulatory requirements, and other factors
Must have critical thinking skills to use logic and reasoning to solve problems
Must have basic knowledge of tools and products used in connection with job
Existing Job Description for Governmental Agency
As previously discussed in this report, one of the largest utilities in U.S., the Tennessee Valley Authority (TVA), is a governmental entity and relies on Migrant
Sprayers for vegetation management. Immediately following are pages extracted
from TVAs contract specifications relating to employees performing brush clearing
and spraying along TVAs rights of way.
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Summary of Key Points About Migrant Spray Industry
The migrant spray industry is an evolution of the reforestation industry and
began about 2O years ago. Many migrant spray companies also perform spraying
on forestry land and use the same work force and brush control techniques regardless of whether the work is performed on rights-of-way, roadsides, or in forests.
Almost all migrant spray work is performed by H-2B workers. These workers did
not replace an existing U.S. workforce doing the same type of work. Prior to the
availability of a migrant work force, right-of-way brush clearing was done mechanically with heavy equipment or helicopters.
Migrant spray work is now an essential part of Integrated Vegetation Management programs implemented by utility companies to maintain electric reliability.
Hand application of herbicide is more effective and environmentally friendly than
the outdated mechanical methods.
In just the Greater South Eastern United States, we estimate that there are more
than 15 companies employing more than 2000 H-2B workers performing migrant
spray work for utility customers. Almost all of the companies that perform this work
also perform more traditional forestry related work including tree planting, pre-commercial thinning, as well as forestry spraying for site preparation and herbaceous
weed control.
The Department of Labor has been certifying employers with H-2B workers performing migratory brush clearing, including right-of-way spraying, on itineraries for
over two decades. Until recently, these H-2B applications have been approved for
the job title Brush Clearer (45-4011) exclusively under the Forestry-related Special
Procedures outlined in TEGL 27-06. In the last few years, however, some employers
have been instructed by DOL to submit H-2B applications for this work under the
job title Sprayer (37-3012). Some of these sprayer applications have been processed under TEGL 27-06 and others have not.
Utilities that hire companies with migrant sprayers typically do not make final
decisions about where vegetation management work will be located until just prior
to the work beginning. Even then, weather, budgets, governmental mandates and
other factors often change tentative work schedules. Typically there is no specific
start or end date mandated by utility companies, other than the general dates associated with the spraying season, spring through fall. Because of the remote locations
where the work takes place and the limited amount of work in any specific geographic area, this work is migratory in nature and must be completed along an
itinerary.
Prepared Statement of Shawn McBurney, Senior Vice President,

Governmental Affairs, American Hotel & Lodging Association
On behalf of the American Hotel & Lodging Association and our members
throughout the United States, thank you for allowing me to comment on an acute
problem in our industrythe ability to locate and hire lower-skilled workers.
Serving the hospitality industry for more than a century, AH&LA is the sole national association representing all sectors and stakeholders in the lodging industry,
including individual hotel property members, hotel companies, student and faculty
members, and industry suppliers.
AH&LAs membership ranges from the smallest independent properties to the
largest convention hotels with a high degree of franchising and independent ownership. Every hotel or motel in our country is unique due to factors that include size,
type, location, services offered, clientele, ownership, and status as an independent
or chain affiliate.
Background on Lodging Industry
In 2011, the lodging industry generated $137.5 billion in total revenue, supported
1.8 million jobs, and represented 1% of U.S. GDP. The leisure and hospitality sector
is the fifth largest employer in the United States and with the lodging industry
alone poised to add 141,000 jobs in the next 7 years according to the U.S. Bureau
of Labor Statistics (BLS).
The hospitality sector serves as a top 10 industry in 48 out of 50 states providing
employment, investment, and opportunity and leading economic recovery with 12
consecutive quarters of growth and providing job creation in every region of the
country.
We are proud that the lodging industry offers career growth potential for our employees where they can rise from entry level to management without the need for
a college diploma.
73
Lodging Industry Recruitment and Retention Efforts
The lodging industry invests heavily in attracting and retaining more employees.
For more than 60 years, the American Hotel & Lodging Educational Foundation
(AH&LEF) has been the primary source of financial support for industry-related
scholarships and maintains school-to-career and workforce development initiatives.
The Foundation awarded $7.4 million in scholarships to hospitality management
students with $514,500 being awarded in 2012 alone.
Hoteliers spend considerable time, money and resources attempting to fill the jobs
they are creating. They advertise in local papers, attend job fairs, work with community-based organizations, canvas job centers, and recruit at military bases, high
schools, and colleges. The industry is a leader in both the welfare-to-work and
school-to-work efforts, and AH&LA has partnered with prominent organizations to
promote careers in lodging.
Despite the generous pay and growth potential the lodging industry offers, many
jobs in lodging go unfilled due to the growth of our industry and workers seeking
employment in other sectors of the economy.
Lodging employers can legally bring in some temporary workers from abroad
through educational and other visas, but not nearly enough to fill all their vacancies. Neither option provides a long-term solution to our worker shortage.
Experience with H-2B Program
While worker shortages are common among hotels throughout the country, the
problem is most acute in seasonal properties. This is especially true for many resorts. The ability to keep their doors open and retain their full-time employees is
contingent upon making enough money during their peak season to offset the rest
of the year when their business is slow.
During their busy seasons, they must supplement their permanent staffs with
temporary seasonal employees. In order to fill these positions, they spend thousands
of dollars and hundreds of hours in aggressive recruitment. Unfortunately, there are
not enough American workers available to fill those positions despite generous pay
and benefits offered.
At one time, employers could rely on college students and other individuals who
would accept temporary jobs on a seasonal basis. That is no longer the case, however. School and seasonal scheduling has changedproperties have lengthened their
seasons into spring and fall, while school years have lengthened, making students
simply unavailable. In addition, many students no longer prefer to work in traditional summer positions.
As a result of this dramatic decline in workers willing to accept temporary positions, many hoteliers have been forced to turn to the federal governments H-2B
worker program as a final option to find short-term workers.
Although it is a complex, time-consuming and expensive process that requires employers to navigate through three separate federal and one state government agency, seasonal employers have turned to the program because their season, and therefore their entire business, depends on the ability to fill temporary seasonal jobs.
Needs in Immigration Reform
Due to the unique nature of seasonal businesses, a new temporary worker program should be crafted that retains the H-2B visa program as a distinct category
of visas.
A seasonal hotelier may spend hundreds of hours and thousands of dollars to secure a worker under the H-2B program after efforts to find American workers were
unsuccessful. The job the H-2B worker fills may only last approximately four
months. That represents a very large investment for a very short-term worker.
Further, if the H-2B program was eliminated and seasonal employers were required to seek workers through a new program that offered positions with multiyear employment, those seasonal jobs would be much less attractive to those workers in comparison, resulting in a more severe worker shortage for seasonal hoteliers.
Given the necessity of the program and the success of the previous H-2B cap exemption policy, Congress should approve a permanent reinstatement of that cap exemption.
Most immediately, the two rules issued by the U.S. Department of Labor (DOL),
one on January 19, 2011 and the other on March 18, 2011 should be permanently
blocked by Congress. Those two rules would make the H-2B program virtually unusable, if they are allowed to be implemented, many seasonal businesses will be forced
to close and lay off their full-time American workers.
A new lower-skilled temporary worker program is necessary to address the worker
shortages that hoteliers throughout the country are experiencing (and which will become worse as the economy recovers).
74
A new program should be established to allow hoteliers to be certified as being
unable to find American workers for their available positions and eligible to hire
temporary foreign workers through the new program.
Unlike the H-2B program, those positions should be able to be filled for up to two
years by a temporary worker, with the option of having that visa renewed. This will
permit hoteliers to secure the workers they need and provide some stability in their
workforces for non-seasonal properties.
Hotels are in the hospitality business. Hospitality cannot be outsourced or automated. Employees remain the lifeblood of our businesses and it is critical that a
legal process is created so that there is access to foreign workers when no Americans are available.
Thank you very much for allowing us to comment on this vitally important issue
to our industry.
[VIA EMAIL],
THE NATIONAL HISPANIC LANDSCAPE ALLIANCE (NHLA),
March 13, 2013.
Hon. TIM WALBERG, Chairman, Subcommittee on Workforce Protections,
Committee on Education and the Workforce, U.S. House of Representatives, Washington, DC.
DEAR CHAIRMAN WALBERG: We appreciate the opportunity to submit this statement for the record, and thank The House Subcommittee on Workforce Protections
for holding a hearing to examine the role of lower-skilled guest worker programs
in todays economy. The National Hispanic Landscape Alliance (NHLA) is a member-based trade association that advances the interests of the more than 500,000
Hispanic families that depend upon the landscape industry for their livelihood. The
landscape industry in the US conservatively accounts for $18.75 billion, or 3% of
total US Latino household income.
It is our view that the current calamity of an estimated 11 million undocumented
migrants serves as de facto proof that the nation suffers from unmet labor needs
and is critically lacking of an adequate system to address those needs in an orderly
manner. It is our hope that in considering the testimony provided, members will
gain a greater understanding of the fact that creating the jobs Americans want and
are able to fill requires the availability of sufficient workers to fill the jobs Americans do not want and are not able to fill.
This truth is plainly evident to us in the landscape services industry where hardto-fill seasonal needs, that are met by H-2B visa holders, enable firms to grow and
expand the number of higher-level fulltime year-round positions to which American
workers aspire, and which Hispanic-Americans due to their linguistic and cultural
competencies are especially well suited to fill. We are therefore advocates of a flexible, employment-driven immigration system that is responsive to workplace needs
and supportive of economic growth.
Such programs should require employers to demonstrate the need for supplemental labor in a manner similar to that required of employers that utilized the H2B program prior to the temporarily blocked new Department of Labor wage screening interested foreign workers. We further propose that the size of such visa programs should be determined by workplace needs, as measured by employer ability
to demonstrate insufficient workforce supply rather than by caps that are, at best,
established using lagging economic data.
A few years ago, one of our member companies committed a filing error and was
not certified for the H-2B visa program that year. Unable to fill 48 seasonal positions with foreign workers, and unwilling to hire undocumented immigrants, this
employer hired more than 1,300 workers during a nine month period in an attempt
to keep the 48 positions filled with US workers. Not only did the high turnover result in great strains of his human resources and training staff, the quality of his
work suffered to the extent that a number of customers were lost, and the firm was
force to reduce the size of its operations the following year and terminate yearround positions.
We regret efforts by the U.S. Department of Labor (DOL) to burden the H-2B program with a series of rules that would render the program unusable and thus penalize the reputable companies that rely on the program to expand their operations,
and the employees that would benefit from such growth. Thankfully, Congressional
action has blocked the implementation of some of those new rules and court action
has blocked implementation of the others.
In our view, the goals of the DOL can best be advanced through the development
of an exemplary H-2B employer recognition program. We believe that such a pro-
75
gram modeled after the successful OSHA Voluntary Protection Programs (VPP)
which recognize the outstanding efforts of employers and employees who have
achieved exemplary occupational safety and health, would help raise the bar for
practices by many H-2B employers by publicizing the actions of some of the best.
In closing, wed like to recommend that the H-2B program should remain as a distinct seasonal program in any reform, and that the program be improved by facilitating the year after year renewal of workers returning for subsequent seasons.
Know that we welcome any opportunity to be of assistance in this matter.
Sincerely,
RALPH EGUES, JR.,
Executive Director.
Prepared Statement of Keesen Landscape Management, Inc.
KLM has been a leading provider of commercial landscape maintenance services
to the Denver metro area since 1972, with peak employment levels of about 220240 employees. We have been utilizing the H-2B program since the mid-1990s and
were one of the first companies in Colorado to do so. During our peak season, approximately 35% of our workforce consists of H-2B workers. All of our employees
have been certified through the E-verify program.
The H-2B program is exceptionally expensive and complicated to use; indeed it
would be cheaper and easier to use American labor to fill our seasonal labor positions if it was available. But even at the bottom of the job market when unemployment was at its highest point nationally, we were able to fill only a small fraction
of the positions needed in order for our company to service its contracts. In 2011
we had a need for 95 seasonal laborers. We were able to fill just 11 spots with
American workers. None of these workers lasted more than 45 days on the job and
most lasted just a couple of days to a couple of weeks. They were paid the prevailing
wage determined by the Department of Labor which was around $9.19 per hour, the
same as our H-2B workers. This is the minimum wage we are required to pay an
H-2B worker or an American worker that applies for a position we are requesting
seasonal labor for. For 2013, the prevailing wage is $9.36 and we need approximately 100 workers. Our efforts to recruit through the newspaper, word of mouth,
advertising on our company vehicles and through the state workforce agency netted
exactly 1 application. This person did not respond to our attempts by phone or mail
to schedule an interview.
Because of the programs myriad of regulations and tight application timeframes,
we use a company that is well-versed in cutting though the red tape associated with
obtaining temporary workers on an H-2B visa. They navigate the 4 government
agencies and masses of paperwork that must be filed each year in order for us to
get our approximately 85 seasonal workers that will work from March through November. We begin that process in mid-summer the year prior to the time we will
need these workers the following March.
For all of the frustration and cost associated with the H-2B program, there are
a great number of benefits derived from this relationship by both the employer and
the H-2B workers. We receive reliable, trained workers who eagerly come back to
work for us year after year. Indeed, they are like family to us. We cater in lunches
and cook breakfast for them as a small way to say thank-you. The workers receive
the benefit of job protections, such as workers compensation and a safe work environment, which may not be available to them in their home country. The local and
national economy benefits through increased orders for supplies, equipment and vehicles. And while they are here, they pay taxes on their earnings. They receive fair
pay for a job that allows them to provide for their families back home. Those same
families that are waiting to greet them when they return to their home country at
the end of their visa. This unique relationship helps us keep quality levels high for
our customers and allows us to remain competitive in a tight economy where many
of our competitors have chosen to cut corners and may not always employ workers
that are able to pass the rigors of the E-verify program. Our American workers,
most of whom are managers or supervisors that work directly with or manage these
H-2B work crews, are not employable if we do not have a trained and reliable source
of labor. Their jobs are directly dependent on these H-2B workers.
Perhaps the most important benefit derived from this program, though, is the certainty that it provides to us in terms of knowing that we will have available labor
to service our contracts with our customers. This is critical to our ability to plan
annually how much new work we can take on. Our employment of our American
workers, our orders of supplies and equipment from our vendorsall of this is dependent on having a reliable, trained source of labor. And that is exactly what the
76
H-2B program provides to us. Could it be less costly and more streamlined to use?
You bet. But at this point it is far superior to the only other two options we would
have if it were not available. The first option includes drastically cutting back the
number of annual contracts we perform, thereby reducing the number of full-time,
year around American workers that we employ and resulting in drastic cuts in orders to our vendors for supplies, equipment, and
American-made trucks and trailers. Our other option is to throw in the towel and
succumb to the pressures of trying to remain competitive in a system that seems
to reward those who choose to circumvent the laws and seemingly seeks to punish
the ones doing their very best to play by the rules.
This issue is about small businesses and the jobs they create which allow them
to employ America workers. A guest worker program is not a luxury. It is a basic
business necessity critical to their survival and the continued employment of their
American workers. I hope that message was communicated loud and clear today.
Chairman WALBERG. Without objection, so ordered. I thank them

for their valuable input on these important issues.
There being no further business before this committee, the committee stands adjourned.
[A submission from Hon. Robert E. Andrews, a Representative in
Congress from the State of New Jersey, follows:]
GOVERNMENT AFFAIRS,
HOME BUILDERS (NAHB),
March 18, 2013.
ANDREWS, 2265 Rayburn House Office Building, Washington, DC
NATIONAL ASSOCIATION
Hon. ROBERT
20515.
OF
DEAR CONGRESSMAN ANDREWS: On behalf of the more than 140,000 members of

the thank you for expressing interest in the health of the construction industry at
the Workforce Protections Subcommittee hearing on lower-skilled guest worker programs on March 14, 2013. You questioned a witness from Greenberg Traurig, LLP
on the current state of the industry, and while we appreciate and support the
witnesss testimony, I want reiterate the witnesss own words that she does not represent the construction community. I also want to correct an inaccuracy from the
witnesss response: the residential construction community is, in fact, facing worker
shortages at present.
In March 2013, NAHBs Economics Department conducted a robust membership
survey to determine the current needs and concerns of the membership at large.
More than half of the builders reported that labor shortages over the past six
months have caused them to pay higher wages or subcontractor bids to secure
projects, and consequently, raise home prices. 46 percent of the builders surveyed
experienced delays in completing projects on time. 15 percent of respondents had to
turn down some projects, and nine percent lost or cancelled sales as a result of recent labor shortages. The Job Openings and Labor Turnover Survey data from the
Bureau of Labor Statistics show that the month of January had the second highest
number of unfilled positions in the last seventeen months.
Residential construction is facing tangible worker shortagesworker shortages
that are impeding the housing recovery. Recognizing your strong support of the industry, I want to reiterate the importance of the housing industry to the economy
at large. Housing construction and the value of housing-related services currently
account for approximately 15% of Gross Domestic Product. The construction of 1,000
single-family homes generates 3,050 jobs in construction and constructionrelated
industries, approximately $145.4 million in wages, and more than $89.2 million in
federal, state and local tax revenues and fees. It is therefore critical that Congress
work to enhance, and not impede, the recovery effort.
NAHB works diligently to address the continuing need for skilled labor within the
nations borders. In partnership with NAHB and Job Corps, the Home Building Institute (HBI) is a national leader for career training and job placement in the building industry. HBIs Job Corps training programs are national in scope but implemented locally, using proven models that can be customized to meet the workforce
needs of communities across the United States and internationally. It prepares students with the skills and experience they need for successful careers through preapprenticeship training, job placement services, mentoring, certification programs,
textbooks and curricula. With an 80 percent job placement rate for graduates, HBI
77
Job Corps programs provide services for disadvantaged youth in 73 centers across
the country.
Yet, NAHB believes strongly that the nation should implement a new marketbased visa system that would allow more immigrants to legally enter the construction workforce each year. Despite our efforts to recruit and train American workers,
our industry faces a very real impediment to full recovery if work is delayed or even
cancelled due to worker shortages. A new, workable visa program would complement our skills training efforts within the nations borders, and fill the labor
gaps needed to meet the nations housing needs.
For these reasons, NAHB is a member of the Essential Worker Immigration Coalition (EWIC), which advocates for the creation of a new program that will supply
the U.S. economy with needed workers, replacing an illegal flow with a legal flow.
We believe that a successful future guest worker program must include an annual
visa cap that fluctuates based on a demand-driven system that reflects the real economic needs of the nation. This program would have a dual-intent process that allows some foreign workers who have demonstrated a commitment to their jobs and
their communities to choose to petition for a change of status to a permanent legal
status in the United States, while also incentivizing most foreign workers to return
to their home country at the end of their visa period. The program would also require employers to treat these legal foreign workers in the same manner as U.S.
workerswith all of the same benefits, workforce protections and wage rates as
similarly-situated workers at the same location.
I hope this information is helpful. If you have any additional questions about the
health of the residential construction industry, NAHBs door is open to you and your
staff for further discussion.
Sincerely,
JAMES W. TOBIN III.
[Questions submitted for the record and their response follows:]
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[Whereupon, at 11:23 a.m., the subcommittee was adjourned.]

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EXAMINING THE ROLE OF LOWERSKILLED GUEST

WORKER PROGRAMS IN TODAYS ECONOMY

SUBCOMMITTEE ON WORKFORCE PROTECTIONS

ONE HUNDRED THIRTEENTH CONGRESS

HEARING HELD IN WASHINGTON, DC, MARCH 14, 2013

Serial No. 11310

For sale by the Superintendent of Documents, U.S. Government Printing Office

COMMITTEE ON EDUCATION AND THE WORKFORCE

George Miller, California,

[Vacant], Staff Director

SUBCOMMITTEE ON WORKFORCE PROTECTIONS

Joe Courtney, Connecticut,

Hearing held on March 14, 2013 ............................................................................

EXAMINING THE ROLE OF

The subcommittee met, pursuant to call, at 10:03 a.m., in room

Chairman WALBERG. I thank the gentleman.

Ms. REIFF. Thank you, Chairman Walberg, and Ranking Member

Chairman WALBERG. Thank you. Your Swedish heritage gave you

Mr. BENJAMIN. Good morning, Chairman Walberg, Ranking

Chairman WALBERG. Thank you, Mr. Benjamin.

Ms. BAUER. Good morning, and thank you for inviting me to

Chairman WALBERG. Ms. Bauer, thank you, as well.

Chairman WALBERG. Without objection.

Protecting American Workers Through a

About the H-2B Program

Migrant Spray Industry Report

Must be 18 years old

Have, obtain, and maintain a valid FLCE license

Transport assigned crew to designated work locations

Cell phone and/or two way radio

Must be able to maintain/complete various forms required for daily herbicide

be able to effectively communicate with customers, office staff and teams

Complete electronic daily and weekly reporting

Computer and GPS Equipment

Prepared Statement of Shawn McBurney, Senior Vice President,

Chairman WALBERG. Without objection, so ordered. I thank them

DEAR CONGRESSMAN ANDREWS: On behalf of the more than 140,000 members of

[Questions submitted for the record and their response follows:]

[Whereupon, at 11:23 a.m., the subcommittee was adjourned.]

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