Monday kickoff: Where's Ag in guest worker program?

Legal Hispanic farmworkers on a farm in Malone under the H2A program. Photo: David Sommerstein

The news leading the headlines over the weekend heralded an agreement in principle among eight bipartisan Senators, including New York Senator Chuck Schumer, regarding a guest worker program. It would target low-skilled jobs in industries like construction, hotels, and restaurants. According to the New York Times, the federal government would hand out 20,000 to 200,000 visas in this category, depending on the unemployment rate and many other factors:

Labor groups wanted to ensure that guest workers would not be paid less than the median wage in their respective industries, and the two sides compromised by agreeing that guest workers would be paid the higher of the prevailing industry wage as determined by the Labor Department or the actual employer wage.

Under the deal, guest workers would be allowed to pursue a path to citizenship and to change jobs after they arrived in the United States.

The agreement still has plenty of time to fall apart before it's built into broad immigration reform.

But there's so far been little discussion about what to do about agriculture's primary guest worker program, H2A. High profile reports in USA Today and the Los Angeles Times recently have documented how bureaucratic and in need of reform it is. From the L.A. Times:

Employers say that the H-2A agricultural visa program…is broken and that the complicated rules and high costs push employers to hire undocumented workers. Labor advocates say that the programs create a group of second-class citizens who are brought here to do grueling and often dangerous work without protection against abuses.

Placating both sides will be a challenge.

NCPR reported on the challenges of the H2A program in 2008.

Completely left out of H2A now is dairy. Dairy farms need year-round workers to milk the cows. The North Country congressional delegation has been working for years to pass a guest worker program that would solve the increasing reliance of dairy farms on undocumented, mostly Hispanic, labor.

It seems clear that agriculture, and more specifically dairy, is a huge piece in puzzle of immigration reform. But in the guest worker plans crafted so far, agriculture has yet to be folded into any grand bargain.

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  1. Last week Julie Grant had an article in "The Dirt" entitled "Holy day tomato symbolizes 'enslaved' farm workers". The article was referencing farm workers in the Florida tomato growing regions; however, I pointed out in a comment that the North Country has population of "south of the border, predominantly out-of-sight, farm laborers who work the super sized dairy farms in our area". In my comment I asked anyone in the know to respond to a series of 10 questions concerning pay, work hours, living arrangements, etc., with a final bit of a needling concerning why with the dearth of employment opportunities for local citizens in the area " they believe they are justified to import legal, quasi-legal and possibly illegal workers".

    A proprietor of a supersize farm responded to my comments with in his words, "Total crap. I am insulted by your assumption that immigrants are mistreated on our farms. It shows total ignorance of reality." He further made claims that: "Everyone who works on my farm is on payroll, paying taxes, having shown documentation consistent with the requirements of the I9 form.", all of his workers worked 6 days and 60 hours per week, they were provided gratis housing, food, electricity, TV, phone, washing for clothing,. ,. and a compensation package of $25-$35,000/year which he described thus, "I would rather not be exact with my compensation packages". Again in his words, " We have 30 employees and 6 of them are Hispanic. We use Hispanics to fill the evening and night milking positions which we have had difficulty filling with local people who will be there every night."

    In as much as the responses he provide to my questions appeared somewhat self serving, I did a bit of research about "I9" and the "Fair Labor Standards Act (FLSA)" which led me to this Watertown Times article , the and the US Department of Labor . I leave it to the current readers of this blog to go to the aforementioned article currently available in the "more" section of "the dirt" to read the entirety of the forth and back we engaged upon.

    The I9 program is a ludicrous non certifying "certification" program obviously created for its' "eye wash" usefulness to the agricultural industry to enable them to use "non-documented" aliens to perform labor intensive functions with all risk to be borne by said non citizen only and to completely exonerate US Ag interests from any possibility of prosecution as long as they fill out the paperwork. Under the I9 rules a farmer hiring a non US citizen must first offer said non citizen a job, then non citizen provides papers which purport to demonstrate that he/she is legally entitled to work in the US. Said farmer/employer then puts such paperwork, with a farmer/employer filled out I9 form, into a folder in the farmer/employer's office file cabinet for safe keeping. No contact with the Employment Eligibility Verification Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) is required on the part of the farmer/employer. Additionally farmer/employer is precluded from questioning or attempting to do other than make a good faith statement that the documents "appear" to be genuine to verify the veracity of the I9 certification documentation he/she was provided by the non citizen just hired. This requirement is ostensibly to preclude discriminatory conduct under the anti-discrimination provision of the Immigration and Nationality Act (INA). If for some unforeseeable reason the U.S. Immigration and Customs Enforcement (ICE) folks come a calling the farmer/employer is required, for the first time, to produce the filled out I9 and supporting documentation provided by his/her non citizen employees and provide ICE with same. If ICE determines there are problems with the documentation the non citizens are usually taken into custody and provided he/she has completely and properly filled out the I9 forms the farmer is off the hook. Hell of a deal.

    Utilizing the Fair Labor Standards Act information and the hours of employment coupled with the compensation packages, of undisclosed detail, the supersize farm owner provided in the aforementioned tete a tete I calculated an effective pay of about $6/hour at the low end and $8.40/hour at the high end which was disputed but not rationally explained away. Direct inquiries on my part as to the methodology used in the calculation of the value of his compensation packages were studiously ignored by the supersize farm owner who was irritated by my initial list of "generic" questions.

    Understandably the readers still perusing this line of pursuit by my geriatric mind are questioning where I am going with same. It is my contention that the line of inquiry of this blog concerning the H-2A visa program and the supersize dairy farm inquiries which I initiated as an outgrowth of last weeks aforementioned blog are inextricably intertwined.

    The H-2A visa program is defined as a program to help farmers with temporary or seasonal needs to harvest a crop or crops. The H-2B visa program is a sister program for non-agricultural workers. From the Southern Poverty Law Center comes the following information:
    Although the H-2A and H-2B programs offer different terms and benefits, they are similar in one significant way: Both programs permit the guest worker to work only for the employer who petitioned the Department of Labor (DOL) for his or her services. If the work situation is abusive or not what was promised, the worker has little or no recourse other than to go home. That puts the worker at a distinct disadvantage in terms of future opportunities in the United States, because his ability to return during any subsequent season depends entirely on an employer’s willingness to submit a request to the U.S. government. In practical terms, it means that an employee is much less likely to complain about wage violations or other abuses.

    “Under federal law, employers must obtain prior approval from the Department of Labor (DOL) to bring in guest workers and must certify that:
    There are not sufficient U.S. workers who are able, willing, qualified and available to perform work at the place and time needed; and
    The wages and working conditions of workers in the United States similarly employed will not be “adversely affected” by the importation of guest workers.”
    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 market’s “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.”16
    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 worker’s 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 guest worker 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;
    Be protected by the same health and safety regulations as other workers; and
    Be eligible for federally funded legal services for matters related to their employment as H-2A workers.17
    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 fundamental legal protections afforded to H-2A workers do not apply to guest workers under the H-2B program.

    Efforts to protect vulnerable guest workers from exploitation have been met with hostility by employers seeking to maintain the H-2 program as a source of cheap, unregulated labor.
    As I stated everything from the colon following “information” above to this sentence is from, the Southern Poverty Law Center .

    David Sommerstein has been reporting about the use of non-documented non US citizens on the dairy farms in New York for at least the past 6 years and has explored the positions taken by the farmers that without the non-documented workers they, the farmers, would be unable to remain in business. A few days more than two years ago today, John Barney of Adams was charged with harboring illegal immigrants and arrested, does anyone know the outcome of this incident? I did a Google search and found articles about the arrest; but, nothing about the outcome. As I pointed out the farmer is responsible for ensuring that he fill out the I9 form with information gleaned from the documents he receives from his non citizen employees; strangely, it appears John Barney did not apparently think/realize that doing the “eye wash” I9 documentation would have given him complete exoneration when ICE came a calling, such as after a non-documented worker died while working at his farm, as that is apparently why he was arrested and subsequently released on his own recognizance.

    If one reviews the employee safeguards provided by the H-2A program vice the H-2B; is there anyone who believes the changes farmers desire to the H-2A are limited to simply extending the time scale the workers can be employed? I would estimate that the "real regulations” changes to the H-2A program the farmers desire would be to extend the employment time scale to years and roll back the worker protections under H-2A to those afforded not even to the level of H-2B 2012 regulations; but, to those miniscule protections afforded under the H-2B 2008 regulations. As this is unlikely to occur the current program of farmers filling out I9 documents with non verified non citizen employee provided specious documentation will likely continue on the supersize farms here in the North Country.

    • I welcome a fair program. I don't have time to respond to every inaccuracy by Ken Hall.

      • Give it a try.

    • I gave facts, but since they did not fit the views of the original poster, he calls them "self serving" or
      'obfuscations." Like I said originally, "Total crap"

      • AS, Your, rapier like, patronizing insight cuts me to the quick.