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.”

 

H-2A program

 

H-2A is “difficult to use, difficult to get everything done in a timely fashion. It’s difficult for farmers to be assured they’ll have workers where and when they need them.

“If it’s hard to bring in 60,000 workers annually now, why would anyone believe the pipeline can be made big enough, fast enough? That system is going to serve American agriculture and bring in almost 500,000 people almost overnight?”

Gasperini was dismissive of legislators claiming the problem can be solved quickly by pushing the program into overdrive. “That doesn’t pass the red-face test. That’s why I like what (Louisiana Agriculture Commissioner) Mike Strain has been saying with regard to this.”

Beating the drum for sensible reform of migrant labor regulations, Strain says hiring legal migrant workers has become an unnecessarily expensive, time-consuming process. With other state departments of agriculture’s backing, Strain has called for streamlining the visa process and reducing red tape to a minimum.  

“If we’re going to continue to rely upon foreign workers, then we need an expedited system to bring them into the country, keep track of them and to make sure they return home when their work visas have expired,” said Strain earlier this year.

“In Louisiana, we employ more than 3,000 H-2B workers. We have very few illegal workers in the state – we use legal migrant workers.

“But there are a number of problems in the system. One is the current electronic system makes it very difficult for our citizens to hire the people they need. That’s particularly true of the seafood industry – things like peeling crawfish, working with alligators and processing crab. Skilled migrant workers are also prevalent in the sugar industry.

“Normally, you must get approval for a worker every year – the same tedious process every year. And it’s very costly. You’re looking at $1,000-1,500/worker to try and expedite the system. You must expedite because of all the typical delays.”

If nothing else, at least provide extended visas, says Strain. “Most of the migrant workers, 90%, come back year-after-year-after-year. So, instead of a yearly approval we propose a five-year approval. Make it like a ‘worker passport’ or whatever.

“That would save the average farmer – if he employs 15 or 20 migrant workers -- $50,000 to $75,000 over a five year period. That’s just the savings from expedited worker fees. A five-year approval process would cut down tremendously on red tape.

“Plus, the farmer would have a bit more time to get the approvals in order. It is very difficult to get the normal, legal, guest workers to their jobs. These workers are critical for a number of our industries: seafood, sugar, nurseries, forestry, vegetables, cotton gins, everywhere.”

 “It’s almost as if the guest worker program is very unfriendly. Each agency says ‘well, it isn’t us making problems it’s another agency.’ Well, someone is responsible and let’s work it out.”

The regulatory tangle for migrant workers also affects the agriculture sector in ways many would never consider. Tracy Zeorian, president of the U.S. Custom Harvesters Association, has seen that up close. Zeorian, who operates a custom harvesting business with her husband, says procuring a hazmat endorsement – which allows a driver to haul materials deemed “hazardous,” including diesel – for migrant workers is impossible.

H-2A employees aren’t eligible to even receive the hazmat endorsement,” says Zeorian, an advocate for changing fuel-hauling regulations. “So, if you have a crew of eight or 10 foreign employees, the American business owner would be the only one who could have the hazmat endorsement. He’d be the one who’d have to haul the fuel to the field every morning and would be the one hauling the tank down the road when driving from job to job.”

 

J-1 visa

 

What about farm workers coming to the United States through aJ-1, or student, visa?

“Generally, that works well only for relatively small growers – like some organic growers,” said Gasperini. “If you need someone to pick crops for 10 hours, that’s not likely to appeal to someone on an educational visa. They’ll sign up for a small organic farm with lots of mixed crops with (the aim of taking the gained knowledge) back home. That’s worked out well for some of those U.S. producers – but not for bigger operations. 

“But producers are being forced to consider all kinds of farm labor alternatives, including convicts. And using convicts can be problematic because some large grocery chains have prohibitions against using prison labor.”

Strain says the pressures facing businesses that rely on migrant labor mustn’t be ignored.  “You know, everyone talks about ‘legal’ and ‘illegal’ workers. Well, if you make it so hard to get legal migrant worker, guess what the consequences are? Everyone wants to hire legal workers but what’s the choice (if they’re shut out)?”