For Farmers, Immigration Questions Are Crucial

Workers carry bins of Chardonnay grapes to a tractor during harvest in the Stelling Vineyard at Far Niente winery Wednesday morning, Aug. 28, 2013 in Oakville, Calif. The harvest is underway in the Napa Valley with the picking of grapes for white and sparkling wine.
National Journal
Rebecca Kaplan
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Rebecca Kaplan
Sept. 3, 2013, 3 p.m.

One real­ity of be­ing a U.S. farm­er is that work­ers can be hard to come by.

“Labor is our biggest is­sue, al­ways,” said Bruce Frasi­er, who grows onions and can­ta­loupes in Car­ri­zo Springs, Texas, about 45 miles from the nearest town on the Mex­ic­an bor­der. He re­lies on a com­bin­a­tion of loc­al laborers and work­ers who com­mute from Mex­ico to his farm — but the num­bers change daily.

“We wake up in the morn­ing and the first ques­tion that we want to get answered is how many people we’ve got,” he said. “The num­ber of people [com­ing from Mex­ico] tells us what sort of pro­duc­tion we’ll be able to ac­com­plish that day.”

In­deed, farm­ers are among the most vo­cal ad­voc­ates for im­mig­ra­tion re­form, seek­ing either a more work­able guest-laborer pro­gram or broad­er leg­al­iz­a­tion that will provide them with a steady, au­thor­ized work­force. Some go so far as to say that the fu­ture of Amer­ic­an ag­ri­cul­ture de­pends on it.

Many farm­ers sup­port an ag­ri­cul­tur­al deal in the Sen­ate im­mig­ra­tion bill that was passed earli­er this year, and ne­go­ti­ated by rep­res­ent­at­ives of grow­ers, farm­work­ers, and a hand­ful of sen­at­ors. The pro­gram would of­fer “blue card” status to work­ers who have already been em­ployed in ag­ri­cul­ture for a cer­tain amount of time and would of­fer them an ac­cel­er­ated, five-year timeline for ob­tain­ing a green card, provided that they stay in ag­ri­cul­ture.

The bill also elim­in­ates the cur­rent H-2A visa pro­gram in fa­vor of a new ag­ri­cul­tur­al tem­por­ary-work­er pro­gram that would ad­mit work­ers for three years (the cur­rent pro­gram of­fers only one-year in­cre­ments) with the op­tion to re­new the visa for an ad­di­tion­al three years. The pro­gram would be capped at 112,333 visas per year for the first five years, with the Ag­ri­cul­ture sec­ret­ary al­lowed to make ad­just­ments there­after. In 2012, the Labor De­part­ment ap­proved 85,248 ap­plic­a­tions for the H-2A pro­gram, which has no cap. The de­part­ment’s Na­tion­al Ag­ri­cul­tur­al Work­ers Sur­vey has es­tim­ated that the per­cent­age of farm works not leg­ally au­thor­ized to work in the United States has hovered around 50 per­cent since 2001.

A House bill au­thored by Ju­di­ciary Com­mit­tee Chair­man Bob Good­latte, R-Va., goes in a dif­fer­ent dir­ec­tion. In­stead of of­fer­ing a path to cit­izen­ship for ag­ri­cul­tur­al work­ers, it re­places the H-2A pro­gram with a new tem­por­ary guest-work­er pro­gram that would provide 500,000 visas per year (a num­ber that can be ad­jus­ted by the Ag­ri­cul­ture sec­ret­ary) and al­low work­ers to stay in the coun­try for 18 months for tem­por­ary work and 36 months for non-tem­por­ary work. In or­der to en­sure work­ers leave the coun­try when their visas ex­pire, the bill would with­hold 10 per­cent of their wages un­til they re­turned to their home coun­tries. It would also no longer re­quire em­ploy­ers to pay the travel ex­penses and provide hous­ing for their em­ploy­ees, as the cur­rent sys­tem does.

The United States has tried a mass leg­al­iz­a­tion that in­cluded sea­son­al ag­ri­cul­tur­al work­ers once be­fore, in the 1986 Im­mig­ra­tion Re­form and Con­trol Act. More than a mil­lion un­doc­u­mented im­mig­rants filed ap­plic­a­tions for the pro­gram. They nat­ur­al­ized, or be­came cit­izens, at a much lower rate than no­na­g­ri­cul­tur­al work­ers, and many ul­ti­mately left the fields after be­ing made leg­al.

“Once they reached leg­al status, many of them left the ag­ri­cul­tur­al in­dustry. They went for bet­ter jobs in con­struc­tion or hos­pit­al­ity,” said Guada­lupe San­dov­al, the man­aging dir­ect­or of the Cali­for­nia Farm Labor Con­tract­or As­so­ci­ation. “I fear we would see something sim­il­ar in a few years down the road if we had the cur­rent im­mig­ra­tion-re­form pack­age passed.”

This wasn’t the case for every­one. Peter Nis­sen, who has owned a farm-man­age­ment com­pany and labor con­tract­or in Cali­for­nia’s Napa Val­ley since 1978, had about 45 work­ers who ap­plied for am­nesty in 1986. About 70 per­cent are still with him, he es­tim­ated, but they are get­ting older and he wor­ries about his labor sup­ply once they re­tire. Nis­sen also thinks his com­pany is the ex­cep­tion, not the rule.

Tough Choices for Em­ploy­ers

In places where im­mig­rants tend to settle, such as Cali­for­nia and Texas, farm­ers can of­ten find labor loc­ally without us­ing the H-2A pro­gram to bring work­ers to the United States. But that means us­ing the I-9 sys­tem to veri­fy leg­al status, which turns farm­ers in­to im­mig­ra­tion agents who must be care­ful to only ac­cept leg­al doc­u­ments.

“There’s these things be­ing forced upon us. We’re be­ing made the po­lice­men,” said Cali­for­nia Cent­ral Val­ley farm-labor con­tract­or Chuck Her­rin.

The situ­ation forces many farm­ers to make a choice: Take the risk of hir­ing work­ers they sus­pect to be il­leg­al, or im­port for­eign work­ers through the H-2A visa pro­gram. Chalmers Carr, a peach farm­er in Ridge Spring, S.C., after hav­ing prob­lems with So­cial Se­cur­ity mis­matches from work­ers who fals­i­fied pa­pers, turned to the H-2A pro­gram in 1999. It re­quires him to pay for the trans­port­a­tion and hous­ing of work­ers im­por­ted to the United States to help with his peach, bell pep­per, and broc­coli har­vest. The pro­gram is ex­pens­ive, he says, run­ning up to $500 dol­lars per work­er for just the visa and trans­port­a­tion from their home coun­tries — and that’s be­fore he provides hous­ing and trans­port­a­tion for them in the U.S. But it has worked.

He star­ted with 100 work­ers, and was able to grow his busi­ness. Now, each sea­son, Carr — one of the na­tion’s largest peach grow­ers — brings in about 550 work­ers to sup­ple­ment his 60 full-time em­ploy­ees. Wages are pegged to a loc­al stand­ard, which means he pays about $2.50 above min­im­um wage. “It’s been a very good sys­tem for us, ” Carr said, “ex­cept for the fact that the cost for it and the bur­den, the reg­u­la­tions, put us at a dis­ad­vant­age to peers in the in­dustry.”

He’s also lucky be­cause the peach-farm­ing pro­cess re­quires him to bring labor in be­fore fruit needs to be har­ves­ted. A ma­jor com­plaint among farm­ers who need only har­vest work­ers is that by the time they have cleared the bur­eau­crat­ic red tape, crops are rot­ting in the fields.

In­deed, part of the H-2A pro­gram re­quires Carr to prove he has ad­vert­ised the jobs to U.S. work­ers. Over the last three years, he says, he has ad­vert­ised for 2,000 jobs. Four hun­dred six­teen U.S. work­ers ap­plied, and 391 nev­er showed up or quit with­in the first few days. “There is no U.S. work­er will­ing to do this work,” he said.

Tough Situ­ation for Work­ers

Carr likes the re­vamped guest-work­er pro­gram Good­latte has pro­posed be­cause it re­moves the re­quire­ments on em­ploy­ers to pay for hous­ing and trans­port­a­tion. But he thinks the 500,000-visa cap is still in­suf­fi­cient. In the end, he says, some com­bin­a­tion of the House and Sen­ate pro­grams would be ideal. “I do hope they meet in the middle, be­cause if we can get a bill through the House and we can get to con­fer­ence, I think over­all every­body will win,” he said.

Not all H-2A de­pend­ent work­ers agree the House bill is the bet­ter pro­gram. Ron Un­der­wood, who has a mink ranch in Iowa, thinks it will be overly com­plic­ated and lacks the in­cent­ive for people to par­ti­cip­ate. “You’ve got to re­mem­ber something,” he said of the cur­rent pop­u­la­tion of un­doc­u­mented im­mig­rants. “These people are already here and they’re already deal­ing out­side of the leg­al sys­tem that ex­ists. They’re good at it.”

There has to be an in­cent­ive for them to come out of the shad­ows, he said.

Un­der­wood faced the choice of hir­ing work­ers here il­leg­ally or us­ing the H-2A pro­gram, and ul­ti­mately settled upon the lat­ter about eight years ago. An ag­ri­cul­tur­al-ex­change pro­gram helped him find An­dre, a Ukrain­i­an work­er who has the spe­cial­ized skills Un­der­wood needs for his ranch. An­dre (he de­clined to give his last name) works for him about 10 months each year be­fore go­ing back to Ukraine, and each year Un­der­wood starts the H-2A pro­cess about five months in ad­vance to make sure An­dre ar­rives on time.

The cur­rent sys­tem works for him to an ex­tent, but Un­der­wood says it needs to be sim­pli­fied and stream­lined. “It’s ex­tremely ex­pens­ive and cum­ber­some and you can see why; once you get in­volved in it, em­ploy­ers and em­ploy­ees choose not to par­ti­cip­ate,” he said.

“I’m as con­ser­vat­ive as they come out here but I be­lieve we have to be flex­ible and we have to be able to em­brace change,” Un­der­wood said, adding, “I do think we have a mor­al ob­lig­a­tion that if we’re go­ing to use this labor, we have to make it more ac­com­mod­at­ing to them.”

Farm­work­er ad­voc­ates point out that ty­ing laborers’ leg­al status and visas to em­ploy­ment can cre­ate a situ­ation ripe for work­er ab­use: They can’t com­plain for fear of los­ing their spon­sor­ship and be­ing de­por­ted.

“Labor pro­tec­tions that we take for gran­ted — sick days, col­lect­ive bar­gain­ing, over­time pay, or the abil­ity to de­nounce work­place ab­use — are nonex­ist­ent in U.S. ag­ri­cul­ture,” Sal­vador Sarmi­ento, the le­gis­lat­ive af­fairs dir­ect­or for the Na­tion­al Day Laborer Or­gan­iz­ing Net­work, said of the many day laborers that pick U.S. crops. “The lack of im­mig­ra­tion status al­lows for ab­users to threaten de­ten­tion or de­port­a­tions at any sign of work­ers or­gan­iz­ing for bet­ter con­di­tions.”

Sarmi­ento said that guest-work­er pro­grams don’t ne­ces­sar­ily solve these prob­lems be­cause work­ers who speak out against their treat­ment risk be­ing black­lis­ted from all re­cruit­ers.

“When I was a farm­work­er you nev­er thought any­thing was wrong,” said Lib­rada Paz, who suffered sexu­al and phys­ic­al ab­use as a young, fe­male farm­work­er after com­ing to the U.S. il­leg­ally as a teen­ager. “New people who come in every year, they have no idea what’s right, what’s wrong, what’s ab­use or what’s not.”

After spend­ing a few years in the fields, where she and her sib­lings would mi­grate with the har­vest sea­son to pick apples, or­anges, to­ma­toes, cu­cum­bers, and zuc­chini, she wanted to go back to school. She still worked on farms, but hav­ing re­ceived leg­al status as part of the 1986 am­nesty, she was able to pur­sue a de­gree in mech­an­ic­al en­gin­eer­ing from the Rochester In­sti­tute of Tech­no­logy.

Today, Paz is a farm­work­er ad­voc­ate through the Rur­al and Mi­grant Min­istry in New York, where she sees many mi­grant fam­il­ies mov­ing to flee crack­downs by Im­mig­ra­tion and Cus­toms En­force­ment. “Fam­il­ies are be­ing de­por­ted every single day, and just in the place where I live “¦ al­most every­body has been de­tained,” she said.

She also wor­ries that by the time Con­gress even­tu­ally passes a law — which is all but cer­tain to ex­clude any­one who has had trouble with the law from ob­tain­ing leg­al status — there may be no one left who is eli­gible.

“I think people de­serve a chance if they’ve been here many, many years,” she said. “I don’t want to see a lot people that have now been here for so long and they now can’t qual­i­fy for a per­mit to work here or they can’t qual­i­fy for res­id­ence.”

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