Is Amnesty the Answer?

Next time someone tries to convince you that amnesty or “adjustment of status” will solve the labor problems present in the agricultural industry, remember this article.

This article provides one of the most compelling arguments against amnesty. Lets learn from the mistakes of history, shall we?

Originally published June 14, 1987

Dallas Morning News

Kevin B. Blackistone

HARVESTING ILL WILL
Growers blame immigration act for labor woes, rotting crops

During the past two and a half weeks, 97 Texas workers traveled to Roy Malensky’s Hillsboro, Ore., strawberry patch to harvest a bumper crop. Malensky had paid for their transportation to Oregon and housed them.

“About 90 percent of my workers used to be illegal,’ Malensky said. “What I tried to do, with the new immigration law, was go out of state, because I knew I’d need workers.’

Once they arrived, however, the Texas workers refused to pick strawberries for minimum wage, Malensky said. And last week, a third or $600,000 worth of his crops went unharvested and spoiled.

Although Malensky is angered with the Texas Employment Commission, which referred the workers, he said ultimately the Immigration Reform and Control Act of 1986 was to blame.

“The labor shortage is extreme, and it’s because of this bill,’ he said. “None of our people (domestic workers) want to pick these crops.’

His charges echoed the sentiments of growers of seasonal, hand-picked produce throughout the West and Northwest who said the new law has precipitated a massive shortage of pickers that may cost them hundreds of millions of dollars.

Washington, the nation’s largest grower of cherries, reported it is 8,000 workers short of the 16,000 it needs this month to harvest that $60 million crop. Washington Gov. Booth Gardner last week considered mobilizing the National Guard and work-release prisoners to help in the fields.

Oregon, the nation’s second-largest grower of cherries, said it is 10,000 workers short of the number it needs for harvest.

And in the Fresno, Calif., area — where many of the nation’s raisins are produced — grape growers reported last week that they are short 15,000 workers.

Furthermore, employment officials in the major migrant farm worker supply states — Texas, Florida and California — said an anticipated increase in demand for harvesters within their own states will deplete their ability to help growers elsewhere.

“Frankly, the indigent people are unwilling to get out there and provide the services that are needed,’ said Dalton Hobbs, a spokesman for the Oregon Department of Agriculture. “That’s why we need people from Mexico — to harvest these crops. If we can’t get this thing resolved, we’re looking at a $200 million to $300 million loss for our growers.’

The farm labor shortage crisis in the West and Northwest is the nightmare that many agriculture experts envisioned as the regulations of the new immigration law were being meted out in Washington.

The agriculture lobby on Capital Hill was able to get a special provision — known as the seasonal agricultural worker program or SAW — included in the regulations to retain migrant farm workers. But some farm labor experts said that now the SAW threatens to eliminate much of their labor.

The SAW program grants amnesty to undocumented workers who have worked in seasonal agriculture at least 90 days each year from May 1984 to May 1986 and had U.S. residency for at least six months each year.

It also grants amnesty to unauthorized aliens who performed seasonal work for at least 90 days between May 1, 1985, and May 1, 1986.

But many of those workers who may qualify are not expected by farm labor officials to remain in the fields.

“We anticipate the new law will have an impact as people qualify for SAW,’ said Rod Willis, a farm labor official with the Florida Department of Labor. “I would imagine a lot will qualify and want to get out of agriculture and that will create a shortage not too far down the road.’

Willis said Florida growers may opt for using another special provision in the new immigration law — the H-2A progam — to get farm workers. That program states that if enough domestic labor can not be found, a grower may bring in temporary piece workers from foreign countries.

But the law requires that the employer perform a labor market analysis to prove that they can not secure adequate domestic labor, and many farmers are unwilling to undertake the time-consuming procedure.

The gravity of the shortage brought several West Coast farm groups to Washington, D.C., last week to discuss their concerns with legislators and Immigration and Naturalization Service commissioner Alan C. Nelson. But the INS and other government officials offered the growers few remedies.

“The fact is there aren’t as many illegals coming across the border, and that’s the cause of the growers’ concern,’ INS spokesman Rick Kenney said. “But that’s the law, and the growers need to be open to some adaptation.’

In the past, Malensky and other growers in the West admitted they have relied heavily on migrant farm labor from the California and Texas valleys and from across the border in Mexico.

But the new immigration law and increased border patrols have kept many illegal Mexican migrants out of the U.S. farm workforce.

“People are just not coming across the border,’ said Mary Beth Lang, a spokeswoman for the Washington Department of Agriculture. “We need 16,000 people for harvesting cherries, and historically 50 percent have been migrants from Mexico.’

In addition, the number of migrants from Texas, California and Florida, who may have left those states to work in the West and Northwest, has been depleted as well, agriculture employment officials explained.

As a consequence, growers in Washington and Oregon, like Malensky, who queried migrant labor supply states for additional piece workers, found their requests brought few answers.

“Our job service centers had job orders last week for over 6,100 people that went unfilled,’ Lang said.

John McHugh, a TEC official said, Texas answered two orders last month from Oregon, including Malensky’s, for extra farm hands. But the TEC only was able to refer a total of 189 workers, McHugh said.

“They needed a lot more than we were able to provide,’ he said. “We didn’t really anticipate that kind of a load.

“We expect a lot more orders from local farmers and growers, and that will keep more people in state. What we could end up with is Texas no longer being a supply state,’ McHugh said.

Farm employment specialists in other supply states concurred with TEC officials.

“Our phones have been ringing off the hook,’ said David Webb, an official with the U.S. Department of Labor in San Francisco. “Prior to this immigration act, California was a surplus labor state. But when you realize as much as 75 percent of it was illegal, you’re going to have a vacuum. California is now more of a demand state.’

The Rumor Mill

Allow me to waste a few moments of your time and mine to dispel some rumors that seem to be circulating in the H-2A community in Kentucky and Tennessee.

ILMC is not limiting visa requests to six workers–in fact ILMC is not limiting visa or worker requests at all.  Our clients request whatever their labor force needs are and ILMC assists them with those requests.

Also we are  filing joint or master orders for clients who need or request them. Of course we can only file those joint and master requests in conjunction with H-2A regulation.

Any policy changes at ILMC would be distributed by ILMC in written format not by word of mouth or through the rumor mill. If you have any questions about ILMC’s policies or services, as always please call our office to get it straight from the source, (910) 245-4808.

Now let’s get back to the business of tending farms, filing H-2 paperwork and initiating positive guestworker reform!

Will DHS resume VIBE program

The Department of Homeland Security and USCIS instituted a verification program called VIBE or Validation Instrument for Business Enterprises.  VIBE was designed to assist USCIS in verifying information about business and farms provided on some employment based petitions like those for H-2A and H-2B. The VIBE program used a private information provider called Dun and Bradstreet (D&B). D&B probably sounds familiar to you because some of you found yourselves in the middle of lengthy telephone conversations with D&B or trying to navigate complicated account updates on their website.

The VIBE program caused significant delays for H-2 users across the country and sparked a rash of complaints. Because of these complaints, USCIS decided to temporarily suspend the VIBE program in late May for H-2A petitions to give USCIS time to re-evaluate the program. In an email from USCIS on June 2nd, USCIS explains that they plan to resume VIBE on July 18th.

We have not received any further updates from USCIS and have not seen any delays–yet. We of course can only hope they have thoroughly re-evaluated the program and have prevented it from causing any other future delays for H-2 employers.

 

State E-Verify Laws Popular

Some states have very quietly passed mandatory E-verify legislation like North Carolina and Tennessee and some have been much louder making national headlines like Georgia and Arkansas.

As the list of states who are passing E-verify laws for all employers continues to grow, we thought it would be helpful to compile a list of of those states that have passed this type of law,

The reach of the legislation varies from state to state, some laws only apply to government contractors and the start and conditions of enforcement vary. If you’d like to see a summary of the law in your state click here and then select your state on the map.

The enforcement date listed on our chart is the date the law will be enforced for employers that have a smaller workforce.

State Name Bill ID Date Effective  All Employers
Idaho Exec Order 2006-40 3/11/2006 NO
Nevada AB 383 6/2/2007 YES
Arizona HB 2779 1/1/2008 YES
Utah SB 251 7/1/2010 YES
Colorado HB 06-1343 8/7/2006 NO
Nebraska LB 403 10/1/2009 NO 
Oklahoma HB 1804 11/1/2007 NO
Texas HB 1196 9/1/2007 NO
Minnesota Exec Order 08-01 1/29/2008 NO
Iowa SF 562 7/1/2007 NO
Missouri HR 1549 1/1/2009 NO
Arkansas HB 1024 8/1/2007 NO
Louisana SB 753 6/23/2006 NO
Illinois HB 1744 1/1/2008 TBD
Tennessee HB 1378 7/1/2013 YES 
Mississippi SB 2988 7/1/2008 YES
Indiana SEA 590 7/1/2011 YES 
Michigan SB 229 10/31/2007 NO
Alabama HB 56 6/9/2011 YES
Georgia HB 87 7/1/2013 YES
S. Carolina S 20 6/27/2011 YES
N. Carolina HB 36 6/23/2011 YES 
Virginia HB 737 3/11/2008 NO
West Virginia WV Code 21-1B-2 4/19/2007 YES
Pennsylvania HB 2319 7/1/2006 NO
Connecticut SB 931 10/1/2007 NO
Massachusetts Exec Order 481 2/23/2007 NO
N. Hampshire HB 1278 1/1/2007 YES
Hawaii HB 1750 7/1/2007 YES

Some helpful links concerning E-verify,

Start using E-verify here

USCIS defines E-Verify

USCIS FAQs about E-verify

Questioning Wage Hour

In a recent web chat with Wage Hour Division personnel, these are the kinds of questions H-2B employers were asking,

[Comment From Bill Zammer Bill Zammer: ] 

Is the Dept of Labor trying to end the H2B program? if not why these onerous new regulations?

  WHD: Thank you for your question, Bill. The Department’s responsibility for the H-2B program is administration and enforcement of the program provisions. The Department is statutorily required to ensure the employment of H-2B workers does not adversely affect the employment of similarly employed U.S. workers. We encourage you to join tomorrow’s web chat with the Employment and Training Administration at 1:30 ET. 

 

 
  [Comment From Elizabeth HeadCan you please give me the names of those in DOL who are working on the proposed rule changes, or should I just speak with my Congressional Representatives and Senators?

 

Wednesday July 13, 2011 1:22 Elizabeth Head

 

 
  [Comment From Mike KennedyI am in the lodging business. We are a seasonal operation. Without H2b workers we are out of business. Is the labor department trying to shut down that program.

 

Wednesday July 13, 2011 1:22 Mike Kennedy

 
   [Comment From JesusThe H2B Program – Why do you want to eliminate the program? Your are asking for comments but you don’t take any consideration of them.

 

Wednesday July 13, 2011 1:22 Jesus

   WHD: Elizabeth, Mike, and Jesus, please see the response provided above for Bill at 1:20 

Wednesday July 13, 2011 1:23 WHD

 
   [Comment From Paul FredellI discourage DOL from moving forward with costly and restrictive new H2B regulations, it will close down my landscape business and it will have an economic impact as well.

 

Wednesday July 13, 2011 1:37 Paul Fredell

 

1:37
  [Comment From VandraCan you touch upon any changes that may impact the H2B employers?

 

Wednesday July 13, 2011 1:37 Vandra

 
    [Comment From MargeMy company is a seasonal employer which utilizes the H-2B visa program. According to the updated FLC Wage Library for Prevailing Wages – a Mean Wage (H-2B) has been added for the OES/SOC code of 37-3011 will this be the prevailing wage for all H-2B visas regardless of the experience or education requirements of the employer.

 

Wednesday July 13, 2011 1:37 Marge

 

 
  [Comment From JesusH2B Program – Small business owners are screaming for a real open discussion. You don’t have any idea of what’s going on. When are you going to address the economic impact of the new regulations? Small Businesses are going to shut down because of your lack of vision

 

Wednesday July 13, 2011 1:37 Jesus

 
   [Comment From JoshIn regards to the H2B program, and effect that it will have on the economy. Can you please explain how the department of labor came to the conclusion that the wage increase will not impact the economy more than 100 million dollars

 

Wednesday July 13, 2011 1:37 Josh

[Comment From G Stanek ] 

As the owner of a landscaping business who expends great effort and expense to host legal guest workers for seasonal positions, I don’t understand how recent changes to the H2-B program will be beneficial for anybody; least of all employers who are trying to maintain their businesses and employees during this time of economic upheaval.

[Comment From Theresa

Why did the DOL increase the wages of H2B workers with no relation to economic condidtions & then accelerate this increase by 3 months, making it effective Oct 1st, 2011 instead of Jan 1, 2012. It seems that the effort is to make the H2B program unusable when small businesses like mine depend on it.

I think you get the idea. With no real answers or relief in sight it is now more important than ever for H-2B employers to unite and collectively fight.

Farmers feel punished by H-2A…

We discovered this story that ran in the Glasgow Daily Times in Kentucky.

May 2, 2011

Farmers feel punished by H-2A regulations

By AMANDA LOVIZA
Glasgow Daily Times

GLASGOW — Local tobacco farmers feel like they’re being penalized for using legal foreign workers to help them during the tobacco season.

“We’re trying to do it right … and we’re the ones who are getting punished,” said Al Pedigo, who owns a 200-acre tobacco farm in Fountain Run.

Pedigo is one of many local farmers who are part of the H-2A program, which allows farmers to apply for permission from the government to bring foreign workers across the border to work seasonal jobs cutting, stripping and housing tobacco. Pedigo said he is thankful for the H-2A program, but the regulations implemented by the government in 2008 and again in 2010 have made it more difficult and much more costly for farmers.

In the last year, the minimum required wage rate for an H-2A worker has increased from $7.40/hour to $9.48/hour. The farmer is also required to pay that same wage to any U.S. worker on the farm. On top of the wage increase, extra fees for the farmers have increased. Where a farmer used to pay for his H-2A workers to get from the U.S. border to the farm, he now has to pay for the workers to get from their home to the farm. Ricky Gray said last year he paid his local H-2A agent about $2,000, and this year he is paying him $3,400.

Gray, who has been raising tobacco for about 30 years and has been part of the H-2A program for the last 15 years, said the Department of Labor officials seem to think the wage and fee increase will both encourage farmers to use U.S. workers and encourage U.S. workers to apply for the jobs. But there just aren’t U.S. workers who want the tobacco jobs, he said.

“They think if we pay them enough, they’ll come. And they’re badly mistaken,” Gray said.

Pedigo said that in the last five years, he had not had a single U.S. worker show more than a passing interest in a job in the tobacco fields. Most U.S. workers are not willing to work the hours that tobacco requires, such as working on a Saturday if it rained during the week. The government doesn’t seem to understand that U.S. workers don’t want to deal with tobacco’s physical demands or the demands on their time.

“I feel like the government is discouraging us from using these workers, and I’m sure they are, but there just aren’t other workers to do this physical, seasonal work,” Pedigo said.

With the new referral system implemented this year, Pedigo now has five U.S. workers in his fields. They have been working fine, he said, but two did not show up for work on Friday and did not call. Maybe a couple of the workers will work out, but he doesn’t have high hopes that they will last through the peak of the season.

“I don’t think they’ll be able to do the work,” he said. “Maybe they can.”

Gray has never had U.S. workers either, and in 15 years of using H-2A workers, he has only had two not finish the season.

“They come to work,” Gray said. “If I don’t have work for them, they’re not happy.”

Gray has the same H-2A workers come to his farm every year for the tobacco season, and he said they have become friends as well as employees.

“My guys, they love working for me,” he said. “I’m very close with all my workers … I think a lot of these guys and they depend on me as much as I depend on them.”

When asked if his H-2A workers would work for less than the required $9.48/hour, Gray’s response was, “Oh, Lord yes.”

Gray said his pay rate per stick of tobacco keeps him above the required minimum wage, but he and Pedigo both said that the $9.48 is more than it should be during parts of the season. And since the workers make more during the season’s peak, a lower wage during the slow part of the season would not hurt the workers. Gray pointed out that it doesn’t make sense that the wage requirement increased when the price of tobacco did not.

“We’re not getting any more for our product,” he said. “We get paid the same as last year.”

Another key component of the new H-2A regulations is the paperwork. Gray said he has at least an hour of paperwork each night, and Pedigo said he spends five to six hours a week on paperwork. When applying for H-2A each year, Pedigo said it takes him about an hour in paperwork per employee, which in his case means 22. But despite the time commitment, Pedigo said he does feel like the paperwork is helpful in making sure farmers don’t fall behind.

“Now that we’re doing it, it’s really made us better, more efficient …” Pedigo said. “It seems like a lot when you start, but you make it work.”

Gray said he stays on top of his paperwork, but it concerns him that if he misses something in all those papers, it could lead to big fines for him.

“I’m not a lawyer, and I don’t understand a lot of the stuff I read,” he said.

According to Karen Garnett, assistant district director of the Wage and Hour Division of the U.S. Department of Labor, one missed document could lead to $1,500 in fines per H-2A worker. Garnett led an information session for farmers in Glasgow on April 19, and she quoted a long list of requirements for farmers. But Gray said he has never seen the form she was quoting.

All the requirements of the new H-2A regulations, with the threat of fines constantly looming over farmers’ heads, make local tobacco farmers like Pedigo and Gray feel like they are being punished when they are trying to keep up with their piles of paperwork. But Pedigo and Gray agree that they need the H-2A program to continue to raise tobacco.

“If it hadn’t been for the H-2A program, I’da quit raising tobacco a long time ago,” Gray said.

“I think the H-2A program is good and it affords farmers the opportunity to get dependable workers …” Pedigo said. “I don’t think I could grow tobacco now without it, or at least not at the scale that I’m trying to grow it.”

USDOL Announces New H-2B rules

On March 18, 2011, the United States Department of Labor published a Notice of Proposed Rulemaking for the H-2B program. If your reaction is—again? I thought we just went through this in 2008, you’re not alone.

Notice of Proposed Rulemaking means that USDOL is announcing their new rules for the program and allowing public comment for 60 days.  They are only proposed rules and have not gone into effect.

 A summary of the proposed rules,

  • Excludes job contractors from using the program
  • Requires a registration process in which employers must prove temporary need before applying for a labor certification. Registration is valid for three years
  • Temporary need is defined as no more than 9 months
  • Requires each employer to offer each worker employment that is a total number of work hours equal to at least ¾ of the workdays of each 4-week period…this means you must offer the worker (foreign or domestic) ¾ of the total contract hours each month and a contract may not be written for less than 35 hours per week, this is considered full time
  • Employer must present a detailed wage earnings statement to workers at each pay period
  • Requires employer to have a written agreement from agent and recruiter that neither will charge or accept fees from workers
  • Job order at employment service will remain open until 3 days before date of need or when the last H-2B worker has departed from their home
  • Requires employer to pay all inbound and outbound transportation expenses, subsistence costs (meals while traveling) and visa fees within the first week of work
  • Requires employer to provide daily transportation from housing to worksite
  • USDOL may subject employers in high areas of unemployment to “enhanced recruitment”
  • USDOL can subject employer to additional domestic recruitment methods including print ad, advertising on the employers website, contact with community based organizations, additional contact with labor unions, contact with faith based organizations, radio advertisements
  • Forestry employers will be required to provide housing free of charge
  • Employer can apply for extension of contract
  • Strengthening debarment authority by also allowing the Wage & Hour Division debarment authority and provides revocation authority to USDOL

 The most significant changes occurred in the domestic recruitment process.  Domestic recruitment obligations have been expanded and the Department has afforded itself some space to require broadened domestic recruitment activity if it deems necessary.

We encourage all of you to make comment on these rules, however abbreviated or not.  Comments should be submitted on or before May 17, 2011.  They can be submitted in only one of the following ways:

• Federal e-Rulemaking Portal

http://www.regulations.gov. Follow the Web

site instructions for submitting

comments.

• Mail or Hand Delivery/Courier:

Please submit all written comments

(including disk and CD–ROM

submissions) to Michael Jones, Acting

Administrator, Office of Policy

Development and Research,

Employment and Training

Administration, U.S. Department of Labor, 200 Constitution Avenue NW.,

Room N–5641, Washington, DC 20210.

We consider the e-Rulemaking Portal to be the preferred method. Other comments can be viewed there. Do not put any personal or contact information in your comments because they will be available for public view.

To read the proposed rules in their entirety visit this link,

 http://www.foreignlaborcert.doleta.gov/pdf/2011_6152.pdf