For years, producers and state agriculture officials have warned that federal laws governing farm workers – often in a three-way tug-of-war between farms’ need for migrant workers in the field, security concerns in the wake of 9/11, and U.S. communities and states claiming heavy social/financial burdens imposed on them by illegal aliens numbering over 11 million – are heavy-handed and laden with unexpected consequences. Until recently, those warnings have largely been ignored.    

In 2009, Frank Gasperini, with the National Council of Ag Employers, blamed the inability of Congress to deal with the farm worker issues on polarization “by the far right and the far left. It’s hard to get it toned down. For the last eight or 10 years in Congress it’s been a case of do it all or do nothing. It’s a difficult time to get things done in Washington.”

Fast-forward two years and Gasperini says the problems have only worsened. “We see this horrendous ag labor shortage getting worse. We’re currently seeing less immigration from Mexico because their economy is stabilizing and aging and their birth rate is dropping. So, where will farm workers come from in a decade?”

And then there are the visa programs – H-2Aand H-2B – overseen by the U.S. Citizenship and Immigration Services (CIS). Under the programs, temporary or seasonal visas are granted to migrant workers. To make agriculture-related hires, the certification process must begin at least 45 days prior to a visa being issued. Once granted, a visa is good for a maximum 364 days.  

However, before the CIS even gets to the potential employer’s request that migrant worker visas be granted, more hurdles must be jumped. One: an employer must prove he has “actively” advertised the job and had no takers. The employer must also file an assertion with the U.S. Department of Labor saying, essentially, that hiring migrant workers is his only option.

“The H-2A program is very important,” says Gasperini. “Obviously, with mandatory E-Verify more people want to look at it.

“But the H-2A program only brings in about 60,000 workers every year. Actually, it was less than 60,000 people last year.

“If we implement mandatory E-Verify across the nation, even if only 50% of our (migrant) workforce turns to be falsely documented – and we think it’s closer to 70% or 80% – we’d lose over 500,000 workers.”