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

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

Watch Video Cast of H-2A Hearing Today

The House Judiciary Committee will hold a hearing on “The H-2A Visa Program: Meeting the Growing Needs of American Agriculture?” this morning April 13, 2011 at 10 am.

You can view the hearing on the Judiciary Committee’s website located at

Lee Wicker from the North Carolina Growers Association will testify as well as one of ILMC’s attorneys Leon Sequeira from the Washington DC based law firm Seyfarth Shaw, rounding out the panel is USDOL Employment & Training Administration Assistant Secretary Jane Oates and Farmworker Justice representative Bruce Goldstein.

We will be watching, hopefully you will too.

Changes Ahead

As a result of the implementation of new regulations guiding the H2A guestworker program in March of this year (“Solis rules”), a lot of employers participating in the guestworker program will feel the shift in policy on the farm.

One of the staff members here at ILMC, Theresa, likes to peruse the decisions on H2A and H2B hearings by Administrative Law Judges (ALJ) from time to time.  I know what you’re thinking, thats a pretty mundane hobby but it actually proves to be a valuable and useful one where our jobs are concerned.

In a recent visit to the site that houses the ALJ decisions, Theresa found a case concerning an “association” called Agricultural Workforce Management Association (AWMA) that attempted to file a master application for employers where none of the parties on the application were jointly employed.  AWMA is an association similar to ILMC based in Kentucky.  As a side note, it appears that agents of this kind grow on trees in Kentucky, there always seems to be a new one.

USDOL denied the case, AWMA appealed the denial with an ALJ.

Clearly this case was a LOSER and should not have been appealed.  The reason why its so obvious is because the new regulations are quite clear about the parameters for filing a master application.  The ALJ restates the regulation that addresses filing a master application in his decision,

20 C.F.R. 655.131
(a) Individual applications. Associations of agricultural employers nlay file an Application for Temporary Employment Certification for H-2A workers as a sole employer, a joint employer, or agent. The association must identify in the Application for Temporary Employment Certification in what capacity it is filing. The association must retain documentation substantiating the employer or agency status of the association and be prepared to submit such documentation in response to a Notice of Deficiency from the CO prior to issuing a Final Determination, or in the event of an audit.
(b)Master applications. An association may file a master application on behalf of its employer-members. The master application is available only when the association is filing as a joint employer. An association may submit a master application covering the same occupation or comparable work available with a number of its employer-members in multiple areas of intended employment, just as though all of the covered employers were in fact a single employer, as long as a single date of need is provided for all workers requested by the Application for Temporary Employment Certification and all employer-members are located in no more than two contiguous States. The association must identify on the…
I think you get the point.  AWMA attempted to file a master application as an association acting as the agent for employers that were not jointly employed.  AWMA lost the case and the denial was upheld.  If AWMA had to refile, the workers arrival was most likely significantly delayed which in turn resulted in a delay in harvest.

Conclusion, the Solis regulations brought change to the fields and to the desks of the paper pushers.  Looks like AWMA may be looking to change their business model? 


New H2A Regulations Posted Today

New H2A regulations were posted in the Federal Register today.  The new rules will become effective beginning March 15, 2010.

Our staff has not had the opportunity to read the new regulations in their entirety, double-spaced on a regular sheet of paper the regulations are over 400 pages so it will take some time. Analysis should come within the next few days.

To read the new regulations yourself click here.