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

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.”


Michael Glah, IPR President Charged in Visa Scheme

One of our clients sent me this news article from the Philadelphia Inquirer, about the criminal charges against Michael Glah, former President of an agency called International Personnel Resources (IPR) based in Pennsylvania.

IPR was a growing agency that assisted employers in filing paperwork so that they could employ foreign temporary workers, predominantly in the H2B visa category.

U.S. Attorneys said that this types of schemes are popping up all over the country.

Michael Glah, image from IPR website

Click here to read the article.

Growers Victorious in Suit Against Solis

Late yesterday a Judge in United States District Court ruled in the growers favor, preventing USDOL from suspending the “Chao rule” that was implemented earlier this year.

To read more details about the case click here

The effort proved successful for the 18 plaintiffs that stood against USDOL and claimed victory for all participants of the H2A guestworker program.

Solis To Suspend H2A Rules

On May 29, 2009, USDOL announced that it will move to suspend the new rules guiding the H2A program that were implemented in January of 2009.

The suspension will be effective June 29, 2009 and the “old rules” will go back in to effect… And for your convenience USDOL has published a new Adverse Effect Wage Rate (AEWR) to be used in conjunction with the old 1987 rules.

If an employer files an application prior to the suspension on June 29th, that application will be subject to the new rules.  Any application that is filed post suspension will be subject to the old 1987 rules and the new AEWR.

Among many problems this suspension will ultimately cause, is the issue of an employer having groups of employees that are subject to different sets of regulations.  Our prediction and the prediction of most in the industry is that this issue will most likely cause unrest on the farm but USDOL doesn’t make any apology for that in their press announcements or their announcement in the Federal Register.  USDOL recommends and “expects” you to segregate the required paperwork.

See USDOL’s Frequently Asked Questions about the suspension here.

See USDOL’s suspension announcement in the Federal Register here.

Important Alert: Solis Moves to Suspend New H2A Regulations

An important announcement for all H2A program users.  Hours after being sworn in on Friday, new Secretary of Labor, Hilda Solis announces a proposed suspension of new H2A regulations that were implemented in January of 2009.  The following articles address the proposed suspension.  The proposed suspension will be open to public comment for 10 days.  It is not apparent at this time where the public should submit their comments.  The news release available at USDOL’s website follows the articles below.

Obama suspends change made to farmworker rule

Bush had eased restrictions on hiring foreigners
By Holly Rosenkrantz
Tucson, Arizona | Published: 03.14.2009
The Obama administration suspended a rule issued at the end of the Bush presidency that made it easier for U.S. employers to hire foreign farmworkers.
The Bush rule eliminated some restrictions on the H-2A program that allows farmers to hire workers from other countries on a temporary basis for seasonal field jobs they find that U.S. workers won’t do.
After President George W. Bush failed to pass immigration reform in 2007, his administration pursued a change in the H-2A program. The new regulation became final Jan. 17, three days before President Obama was inaugurated.
The Bush rule eased the regulatory burden employers face to prove they tried to recruit Americans first, and limited how much employers have to reimburse foreign workers for the cost of going home. It eliminated the duplication among federal and states agencies processing applications and revised the wage formula.
Erik Nicholson, a vice president of the United Farm Workers, said the Bush plan would damage wages and working conditions. The Bush administration had said it would reduce the regulatory work required of companies trying to hire farmworkers.
“Suspending the rule would allow the department to review and reconsider the regulation,” Secretary of Labor Hilda Solis said in a written statement.
During the nine-month suspension period for the rule, the Labor Department will continue to accept and process H-2A applications.

Labor Secretary Solis Suspends Last-Minute Bush Rule Regarding Foreign Farm Workers
Sunday, March 15, 2009      


Migrant Worker Manuel R. Lopez (photo: Noelle M. Steele, Greenfied, Indiana Daily Reporter)

One week before Christmas, the Bush administration changed the rules to make it easier and cheaper for agricultural businesses to employ temporary foreign workers. On Friday, within hours of being sworn in as Secretary of Labor, Hilda Solis announced that she would suspend implementation of the Bush regulations for nine months, pending ten days of open comment from the public. The Bush rules went into effect three days before President Bush left office.

The issue pits growers and agribusiness against farm workers and labor unions. The Bush rules reduce wages and travel reimbursements for many farm workers and allow growers to self-certify guest workers as qualified. Erik Nicholson, vice president of the United Farm Workers, called the Bush rules “some of the worst setbacks for farm workers in decades.” Solis herself had spoken out against the regulations while she was a member of the House of Representatives.
Labor Secretary Proposes Suspending Farm Rules (by Steven Greenhouse, New York Times)
Summary of AgJOBS Bill (by Bill Beardall, Equal Justice Center)

ETA News Release: [03/13/2009]
Contact Name: Peggy Abrahamson or Suzy Bohnert
Phone Number: (202) 693-7909 or x 4665 
Release Number: 09-0243-NAT

U.S. Department of Labor proposes to suspend H-2A rule

WASHINGTON — The U.S. Department of Labor’s Employment and Training Administration (ETA) today announced the proposed suspension for nine months of a final rule implementing changes to the H-2A program, which allows U.S. agricultural businesses to employ foreign workers in temporary or seasonal agricultural jobs. The department’s proposed action is open for public comment for 10 days.

“Because many stakeholders have raised concerns about the H-2A regulations, this proposed suspension is the prudent and responsible action to take,” said Secretary of Labor Hilda L. Solis. “Suspending the rule would allow the department to review and reconsider the regulation, while minimizing disruption to state workforce agencies, employers and workers.”

The proposed suspension of the final rule will appear in the Federal Register on March 17. The final rule appeared in the Federal Register on Dec. 18, 2008, and took effect on Jan. 17, 2009.

The H-2A nonimmigrant program is designed to provide agricultural businesses with short-term foreign agricultural labor when there are not enough domestic workers. Receiving an H-2A labor certification is the first step in the employment-based immigration process to work on a farm.

In 2008, the department granted North Carolina, Georgia, and Florida the largest numbers of H-2A labor certifications.

The Labor Department’s Office of Foreign Labor Certification will continue to accept and process H-2A applications during the proposed suspension period. Any final action on today’s proposed suspension will appear in a future Federal Register notice.


Attacks on US Consulates in Mexico

The Associated Press released a report on Monday October 13, 2008 concerning a recent attack on the US Consulate in Monterrey, Mexico.  According to the report, unidentified assailants fired shots and threw one grenade at the Consulate building early Sunday October 12th.  The grenade failed to explode.  The same day two grenades were thrown at the Public Safety Office in Guadalajara. 

A bullet hole in a fence that surrounds the Monterrey Consulate

A bullet hole in a fence that surrounds the Monterrey Consulate

These reports are disconcerning because a lot of tourist and guestworker visas are processed at the Monterrey facility.  In fact, the US Consulate in Monterrey is the largest processor of guestworker visas in the world.  In the past few years, their flow of visa applicants in a day has ranged from 200 to 2000.  The U.S. State Department has in recent years attempted to distribute the numbers of guestworker visa applicants to other US Consulate locations around Mexico.  Some of the cities where these Consulate posts are located have very significant crime rates.  Employers of these guestworkers are concerned about the safety of their employees.  Assailants know that applicants that are going to the Consulate may be carrying significant amounts of money to pay various fees to receive a guestworker visa and they target these individuals.  We are aware of some past incidents where applicants have been beaten and robbed, although that number of attacks is very low.  As violence on the U.S.- Mexico border increases involving shootouts between U.S. border patrol agents and drug lords, it is hard to pinpoint a concerted effort by our leaders to make our border and it’s Consulate posts within Mexico safer.  Our southern border becomes a more volatile and dangerous place and Mexico as a nation looks more and more out of control each day.

A worker holds a petition that he will present to Consulate officials to get a work visa

A worker holds a petition that he will present to Consulate officials to get a work visa

Visa service was suspended on Thursday after more gunshots were heard nearby, combat-ready police surrounded the facility.  Tony Garza, the US Ambassador to Mexico had this to say to the San Antonio Express-News after visiting the Monterrey post,

“They will find that it was a mistake to target a United States consulate,” he said in a statement. “No one should believe they can attack a United States government facility with impunity.”

Masked guard outside of Monterrey Consulate building

Masked guard outside of Monterrey Consulate building

Security has been reinforced at Monterrey, Nuevo Laredo, Matamoros, Tijuana and Ciudad Juarez Consulate posts.  It is unclear how aggressively Mexican and US officials will try to prevent this violence from happening again.  It is however evident that Mexico has a severe problem with violence and homicide country wide, including decapitation, which is disturbingly common.  In speaking with some residents of Mexico, their thought is that the presence of law enforcement in some Mexican cities is an afterthought rather than a constant.

The Monterrey Consulate processes large numbers of applicants during the week

The Monterrey Consulate processes large numbers of applicants each weekday

H2A User Willoway Nurseries in Sandusky Register

We think there is little slant in the article written about Willoway Nurseries, published in the Sandusky Register over the weekend. A fair article stating the facts about the H2A program is a rarity.   For us and all of the participants in the guestworker program this article is a breath of fresh air.  The positive side of the H2A program does not seem to be news worthy which is unfortunate for the reader because there are many great stories about guestworkers and their employers that are not being told.

Entrance to Willoway Nurseries, Over 800 acres in Avon, OH

Entrance to Willoway Nurseries, Over 800 acres in Avon, OH






Migrant workers help northern Ohio nursery expand

By CORY FROLIK Sandusky Register

On at least one shelf of the Huron Public Library sit books written entirely in Spanish.

This is where Juan Patino, 41, often heads in his free time for cheap entertainment.

Patino tries to save every dime he can to send home to his family in Mexico. He estimates that as much as 85 percent of his paycheck is sent south, meaning he tries to keep luxuries to a minimum.

Patino has made a tremendous sacrifice for his “familia” _ Spanish for family.

When his son, Pablo, was born six years ago, Patino didn’t have much time to get to know him.

Not long after he took his wife, Yolanda Sanchez, and Pablo home from the hospital after a risky pregnancy, he had to leave fast.

Patino had to catch a bus north _ a ride that comes only once a year.

To support his wife and two children, Patino travels 1,800 miles from his home in Apaseo el Alto, Mexico, to the Huron-Berlin Heights area, where he spends nine months working outdoors, taking care of plants.

Patino is one of about 250 migrant workers who are legally employed by Willoway Nurseries Inc., a wholesale plant nursery with two main farms in Avon and Huron.

After about 10 years on the job, one might expect that Patino has grown fully accustomed to the routine of leaving his loved ones behind for long stretches of time.

He hasn’t.

“It’s too tough. … Every time I come here, it’s more difficult because they’re growing up, and I’m not (there to see it),” he said.

Not that Patino doesn’t appreciate the work opportunity.

Starting wage at Willoway Nurseries is $9.93 an hour for general nursery workers. Senior crew leaders, like Patino, can make up to $11.20 an hour.

That is far higher than the standard wages found throughout much of the impoverished countryside of Mexico, said Emily Jalkanen, administrative assistant with Willoway Nurseries.

“They’d probably make that in one day there, if they even had a job,” she said.

The work arrangement is mutually beneficial. Without Willoway, Patino would still be working at a shopping center making much less than he does. Without the guest-worker program, Willoway would not have been able to grow into one of the larger nursery wholesalers in the Midwest.

“We could not get a stable work force locally and reliably without the migrants,” said Cathy Kowalczyk, vice president of Willoway Nurseries.

Willoway Nurseries joined the federal H-2A agricultural guest-worker program a little more than 10 years ago out of desperation. The local pool of laborers in the area was hopelessly shallow. The company relied heavily on high school students to do many of the nursery jobs. But being students, with classes and homework, their schedules were only so flexible.

Evergreen stock at Willoway

Evergreen stock at Willoway

“We cannot get 250 local, domestic workers to do these jobs. One of the rules of the program is that we have to attempt to hire local workers for these jobs every year. Anyone who comes in from, say they live in Sandusky, and they want the same job that an H-2A worker has, they have first rights to that job,” Jalkanen said.

Despite this requirement, the number of local applicants is inadequate to run the operation.

All too often, when people see someone of Hispanic descent who speaks little-to-no English, they immediately assume that person is an illegal alien, Jalkanen said. Willoway’s migrant labor force is completely legal, and represents only a fraction of the migrant laborers working in the United States.

“A lot of people don’t even know (this program) exists. When they see a Mexican, they think, ‘Oh, they’ve got to be an illegal.’ But there are programs like this out there, where anyone can come up here. They don’t have to be from Mexico, they can be from anywhere on a work visa,” Jalkanen said.

“They are on a contract for 10 months. When they apply for this job, they get a work visa, and their visa says they are only allowed to work at Willoway Nurseries, and it says their contract date: March 1 to Dec. 1.”

U.S. Secretary of Labor Elaine Chao said in a statement that agricultural employers hired about 75,000 H-2A workers last year. Department of Labor officials have said the H-2A program, created in 1986, should be expanded to meet the demands of the agricultural sector, so domestic food production isn’t shipped overseas.

Even though the U.S. is contentiously divided about the question of immigration, the H-2A program is entirely legitimate and has strong proponents from both sides of the political aisle. Both sides seem to agree that the program is a reasonable solution to a labor shortage.

Other criticism of migrant workers often is the result of preconceived notions, said Dave Geary, manager at the Huron farm.

“We love having the guys here. We’ve run into some people who have a stigma about these guys. But they’re great people, hard working and just like anyone else. They have families and people they care about,” Geary said. “They are our friends, and we consider a lot of them family.”

Even though the pay at Willoway is well above minimum-wage levels, nursery workers certainly earn their keep.

They work outside in all conditions _ sleet, snow or freezing rain _ because there is never a time when the plants don’t need attention, Geary said.

Moving containers at Willoway

Moving containers at Willoway

Geary said finding workers able to rise to the physical challenges of farming, trimming, weeding and potting is tough considering today’s societal values. Even smaller communities increasingly produce fewer and fewer farm-minded individuals.

“The biggest thing for us is they are stable workers, and we get a type of person who really understands the work. They are coming from the farming backgrounds,” Geary said. “You really have to be used to working in the elements. That’s the difficult part of it.”

The work is tough, but so is adapting to American culture. Learning the language and customs is not something that occurs overnight.

Even after 10 years of exposure and many lunchtime coaching sessions, Patino still stumbles while speaking in English.

“A lot of them do take English classes because they’ve learned that to succeed here in an English-speaking community, you’ve got to learn the language,” Jalkanen said.

Still, Patino’s pretty much gotten the hang of American life. And the area has helped in other ways, too: A bus from St. Mary Catholic Church in Vermilion swings by the housing complex each Sunday to take workers to church, company officials said. They also donate couches and furniture to workers to make their lives a little more comfortable.

Patino sometimes entertains the thought of trying to acquire a green card. He considers Mexico home, but he yearns for a day when his major form of contact with his wife and kids won’t be three cell phone conversations each week.

But even after years of hop-scotching between Mexico and Ohio, it is doubtful that he stands much of a chance of receiving citizenship, Geary said.

“I don’t think this is much of a steppingstone program,” Geary said.

Wilma Trujillo, 44, supervisor of the nursery’s shipping department, can attest to the difficulty involved in becoming a U.S. citizen.

Originally from Florencia, Colombia, she was accepted to the University of Florida on a student visa. After graduating, she then received her master’s in agronomy before transferring to Ohio State University, where she received her doctorate in soil science.

She then became employed at Willoway, where she has worked more than seven years.

A foreign citizen’s best chance to become a U.S. citizen is having a family member with a green card or attending school here, Geary said.

Considering Trujillo was a model student and Willoway sponsored her bid for citizenship, she seemed a shoo-in.

Even so, it took more than four-and-a-half years to get her green card. One legal misstep along the way, and her application would likely have been rejected, Trujillo said.