By Elizabeth Henderson

Farmers who need to hire workers face a painful dilemma: revenues from farm products are too low to pay attractive wages, most local residents prefer cleaner, less physically demanding jobs, and many of the skilled farm workers are undocumented immigrants. Knowingly hiring an undocumented worker is a felony. As the new administration’s anti-immigrant policies unfold, pressure from farmers and farm organizations is increasing to expand the H-2A “Guestworker” program. Farmworker advocates question this program’s fairness to the workers from abroad and to the undocumented workers who make up 55 to 70 percent of current farm labor and who may lose their jobs to the imported workers. Farmers complain about the heavy paperwork burden involved in H-2A. Improving the guestworker program does not go to the source of the problem: the US cheap food system functions as long as there are sources of cheap labor. In a farming system worth sustaining, work as a professional farm worker will be a respected vocation that provides living wages with decent benefits.

But while we are transforming the cheap food system, we can at least reduce the injustices of the one farmers and farm workers must navigate in order to survive. The National Sustainable Agriculture Coalition (NSAC) proposal to reform the program identifies its major flaws:

“The so-called guestworker programs such as H-2A, and H-2B suffer from the same structural defect—they provide temporary workers to the companies that have been least successful in attracting a labor force.  The visas are given to workers, but the visas are tied to specific businesses, which often use intermediaries to recruit, transport, and supervise the workers.  The lack of portability of the visa inevitably leads to abuses by the intermediaries or employers—such as taking bribes, charging workers for equipment or transport, or demanding a portion of future earnings–since the workers fear retaliation if they complain.  These heavily bureaucratic programs should be abandoned for an approach that gives the workers a portable work visa and allows the labor market to function.”

The NSAC proposal envisages creating North American Agricultural Work Visas (NAAV), “dual intent” visas that would allow guestworkers to change employers and to come and go across the border.  The same freedom to cross the border legally should be instituted for the 11 million undocumented people in the US, including the million or more farm workers.

Despite the shortcomings of H-2A, some farmers have been using the program for many years and rely on it. “We have been bringing back the same men for 12 years. Hiring H2A workers has enabled us to build our business on reliable labor.” That is how Chris Cashen of the Farm at Miller’s Crossing in Hudson, NY, explains why he has gone to the trouble of using the H2A Program to bring workers all the way from Guatemala for seven months each year.

The Departments of Labor and Justice jointly instituted H-2A in 1952 to meet the need for seasonal and temporary labor on US farms, granting foreign nationals legal permission to work in the US at specified jobs for up to ten months before returning home. Year round workers are not covered. Three federal agencies within the Department of Homeland Security manage the H-2A program. The Department of Labor issues the H-2A labor certifications and oversees compliance with labor laws. The US Citizenship and Immigration Services (USCIS) processes the H-2A petitions from employers, and the Department of State issues visas to workers at consulates in their countries.  State departments of labor make on-farm inspections and state departments of health inspect the housing, which farmers must provide free of charge. Not surprisingly with so many agencies involved, miscommunications and delays occur. Until this year, applications had to go by snail mail. But there is no other legal program that allows farmers to bring agricultural workers from other countries to their farms.

growth in h2a certificates
The growth of H-2A nationally from 2006 – 2016.

As the number of H-2A workers has risen over this decade from 60,000 to 180,000, the complexities of the program have resulted in increasing delays in the processing of labor certifications, visa petitions and interviews for the final border crossing, and thus delays in worker arrivals at farms.  Some farmers complain about workers not arriving in time for harvests and about the confusing amount of paperwork. But for farms like the Martins in Brockport, NY, Indian Ladders near Albany, NY, Zaid Kurdieh at Norwich Meadows Farm in Norwich NY, and the Farm at Miller’s Crossing, the benefits outweigh the shortcomings.

This is how Chris Cashen describes what he must do to apply.  The first year, he hired an agency to help with the paperwork, but found they were expensive and slow.  So he and his wife Katie decided to do it themselves.  The process begins in November when they post their job opening with the NY Department of Labor. The job is then posted and available to domestic workers who have the experience required as defined in the work order. Then they post the job statewide, for the upcoming seasonal position. The next step requires authorization from the Federal Dept. of Labor, which can only be accomplished after moving through the NY state posting process. Once approved by the National DoL, next agency stop is Homeland Security for identification of the business applying, and then onto USCIS.  All of this takes 90 days.

Regardless of continuous use of the program, farmers are required to go through each step every year, regardless of previous approvals and authentications. Every year, Cashen has to prove that “there are not sufficient workers who are able, willing, qualified, and available, and that the employment of aliens will not adversely affect the wages and working conditions of workers similarly employed in the U.S.” To do this, Cashen must advertise the jobs in local papers and in two other states and keep a recruitment log.  He remarked ruefully that he has only managed to recruit one worker with these ads. This “local” worker took a local landscaping job after 2 seasons. With all necessary approvals in hand, Cashen is then allowed to hire internationally and has the choice of country.  Once USCIS gives the green light, the 8 workers go for interviews at the US consulate in Guatemala.  They must demonstrate that they have had no arrests and that they are have solid attachments to their home country.  It takes 3 – 5 days for them to get visas. Meanwhile Cashen buys round trip plane tickets for them.

Once the H-2A workers arrive at the Farm at Miller’s Crossing, they work 10 – 12 hour days. The farm has to comply with all federal and state labor regulations, and workers are covered by most US labor laws, including the Wage and Hour Act, Worker’s Compensation and the Affordable Care Act. Cashen also has to purchase NYS unemployment insurance for these workers (NY is the only state that requires this) although non-citizens are not eligible for unemployment insurance payments. Cashen must pay H-2A workers the higher of federal or state minimum wage, the applicable prevailing hourly wage rate, or the applicable adverse effect wage rate (AEWR) which averages $10 – 14 an hour for New York in 2016. In addition, Cashen must pay any local hires doing the same job as H-2A workers at least that rate as well.  He also hires 2 – 3 local people who work year round.

Before switching to H-2A, Cashen hired interns.  After a few experiences when interns up and left when they decided that farming wasn’t for them, Cashen gave up trying to both run a farm and be a teacher-mentor.  He says he is comfortable with his current labor situation.  The H-2A men live on the farm and, as Cashen puts it, “they are there for the farm” which has 70 acres of vegetables and a CSA with 1000 members, as well as wholesale markets.  They want to earn as much money as they can and will work alongside him from dawn till dusk.  They can earn up to $25,000 in the seven to eight month season, and Cashen says they are well worth it.  “They are professional, skilled, intelligent men who do not drink, are religious and good citizens.” He has had no serious conflicts over the 12 years and there have been only a few personality clashes among the men. Cashen says he can leave work at 4:30 to take his children to a soccer game and not worry about farm work getting done.

At Indian Ladders Farm, an apple farm that has its 100th anniversary this year, Peter Ten Eyck says he is a “big fan” of H-2A and has used the program for over 30 years. A coop of Hudson Valley farms he belongs to helps with some of the paperwork. Transportation and all the fees cost $1090 per worker and the pay rate this year is $11.76 an hour. The many inspectors to his farm wear deep ruts in the road – there is the Jamaican government, the county health department, and sometimes OSHA. Unlike housing on some dairy farms, H-2A housing must be up to code and, as Peter Ten Eyck reports, there are plenty of inspections to make sure, though Worker Justice staffers have observed H-2A housing on other farms that is of poor quality. Ten workers come to his farm from Jamaica to harvest apples for 6 – 7 weeks, most of them the same who have come year after year. This year, he also had a few come in the spring and stay for the whole season. Recently there are two or three younger men, sons of the older guys.

Cathy Martin of Martin’s Farm, a large vegetable farm in Western NY, hires over 90 H2A workers a year.  She, explained that it has been almost impossible to get enough domestic workers.  She has tried many ways – through the DoL, advertising, and through church groups that connected the farm with refugees.  The biggest challenge she encountered with the refugees was communication when people come from many different countries.

To plant and harvest the 9 acres of intensely cropped high tunnels at Norwich Meadows, Zaid Kurdieh has used the H-2A program since 2003, at first hiring Guatemalans, then settling on a group of Egyptian organic farmers with whom he can communicate in Arabic. Although the Egyptians have a cooperative with 85 acres of certified organic vegetables and herbs, they cannot earn more than $2000 over expenses in a year.  Arranging for these men to return year after year is no small task since Egypt is not on the list of approved countries established by President Bush. Kurdieh provides 400 pages of documentation to prove that it is in the national interest to allow them to come to his farm.  He says the older men have 15 – 20 years of experience with high tunnels and are able to get higher yields and better crops than would be possible with less skilled workers.

H2A certificates in NE
The use of H-2A in the Northeast states, 2006 – 2016.

Farmers like Chris Cashen, Zaid Kurdieh and Peter Ten Eyck are grateful for the program despite the paperwork, the delays and other flaws. The H-2A is also an economic opportunity for these workers. Passage across the border is legal and transportation costs are paid. Workers from Latin America earn in a day in the US what they might earn in a week at home- if they could find a job.

But, as pointed out in the NSAC statement, the program has serious flaws from the worker perspective. H-2A workers cannot change jobs if they do not like their employer; if there is a disagreement with the employer, the worker risks getting sent home with no chance of future participation in the program. Once the contracted work period ends, the workers must return home.  Workers cannot apply for an H-2A visa on their own.  They must wait for an invitation from an employer. To gain access to H-2A in their home countries, workers often have to pay heavy bribes to the agencies that recruit workers for the program.

While working in the US, H-2A workers must pay income taxes and social security, though they will never see the benefits. They must purchase health insurance or face a $695 fine. They are covered by Workers Compensation insurance, but once they leave the farm, it is very difficult to access covered treatments. The majority of the H-2A workforce is composed almost exclusively of young men. The housing provided by farms may not always accommodate a couple who wanted to work together on H-2A visas and it is highly unlikely their children would be able to join them.

In December 2016, the UN Special Rapporteur came to the US to observe the H-2Aand B programs and reported that “the temporary visa for migrant workers, in the agriculture or in other sectors, which ties every worker to a particular employer, exposes them to the risk of exploitation and trafficking, as they are prevented from denouncing exploitation for fear of losing their job or their residence status.” (December 19, 2016, statement from Maria Grazia Giammarinaro, UN Special Rapporteur in Trafficking in Persons, especially Women and Children, accessed on UN website http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21050&LangID=E.)

In evaluating H-2A for its domestic fair trade standards, the Agricultural Justice Project concluded that given the failure of Congress to pass immigration reform, it is better to have some way for workers to cross the border legally.  If the workers on a farm request that the farmer engage in the program, the farm is eligible for Food Justice Certification as long as the farmers treat the H-2A workers with the same respect and use the same conflict resolution and other policies as with locally hired people.

While the H-2A program is filling a crucial labor gap on farms, change is needed.

In their article summarizing the H-2A program, Farm Credit concludes: “Given the increasing focus on border security, employer compliance with immigration laws and curbing illegal immigration, agricultural employers have fewer and fewer options to find workers. The H-2A program, with its significant regulatory burdens and increased costs, is already a cumbersome program. Yet, the program is proving increasingly unworkable to many American farmers. It is imperative that the H-2A program is reformed or replaced if we are to maintain American agriculture as an ongoing source for abundant, affordable, safe and domestically produced farm products.”

The NSAC replacement for H-2A, North American Agricultural Work Visas would reduce the injustices to the foreign workers and eliminate most of the bureaucratic snarls for farmers (see http://sustainableagriculture.net/blog/immigration-reform-principles/ for more detail and a link to a description of NAAV), but to create a truly sustainable solution, the “dual intent” visas must be part of full immigration reform based on human rights as defined in the Universal Declaration of Human Rights. According to this international agreement, every human being has the right to life, liberty, security of person, the right to freedom of movement, to leave any country, including one’s own, and to return, the right to work  and “everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity.” The Agricultural Worker Program Act of 2017 is a good place to begin. (See  Fact Sheet. from Farmworker Justice).

 

 

 

 

 

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