H-2A: Is this the future of ag work force?

Issue Date: August 8, 2007
Christine Souza

Whether or not Congress passes AgJOBS legislation, the federal H-2A program is the only option growers have to bring future guestworkers into the United States legally, according to James Holt, the nation's leading expert and consultant on the H-2A program.

"The H-2A program is absolutely the key to having a consistent future legal labor force, especially in the seasonal and temporary work force. If you are concerned that we may be describing something that is about to become a dinosaur, that is not the case," said Holt, an H-2A consultant based in Washington, D.C. "In the AgJOBS legislation, the basic structure of the H-2A program, and many if not most of the operating procedures, will remain the same. Hopefully some of the glitches will be ironed out."

Holt, who has more than 30 years experience with the H-2A and predecessor programs, and has consulted with virtually every major user of the program in the United States, addressed about 30 people during a daylong workshop held at California Farm Bureau Federation offices in Sacramento. He was joined by Sharon Hughes, executive vice president of the National Council of Agricultural Employers, located in Washington, D.C. Hughes provided information about immigration legislation currently being considered in Congress.

"We as a nation are heavily dependent on foreign-born workers for our work force. We are creating a million and a half more jobs in this country every year than we are producing people to fill them. We can reconcile that in one of two ways: We can either allow folks to immigrate into this country to fill that gap, or we can reduce economic growth," Holt said. "Why we have not addressed this problem in 15 years of congressional debate is daunting."

One of every six farmworkers is a newcomer and 99 percent of those newcomers say they are not legally entitled to work in the United States, Holt said.

"This means we have an agricultural industry in this country that is totally dependent ... your investment, your livelihood, my food supply, our national food security are totally dependent on illegal workers," Holt said. "That is why it is so imperative that we address this problem."

Luawanna Hallstrom, a San Diego County tomato grower who chairs the CFBF labor advisory committee and is Western vice president of the National Council of Agricultural Employers, was present for the workshop and said this is a critical time for California agriculture.

"It is a choice of whether we want to be in business or not. We want to farm but we cannot farm without a legal labor force today," said Hallstrom, who has participated in the H-2A program for the past five years. "Status quo is not OK anymore. We're either going to close our doors or we're going to go out there and find a legal labor force as best we can."

According to Holt, the key to a legal work force is the H-2A program, the temporary agricultural worker program designed to bring in immigrant workers to fill seasonal positions when domestic workers are not available. The program was originally enacted in the Immigration and Nationality Act of 1952.

For fiscal year 2006, nationally there were 59,112 H-2A workers and fewer than 5,912 employers certified by the U.S. Department of Labor. Of those, 2,292 H-2A workers and 258 employers were certified in California.

"There is folklore that somehow or another the H-2A program isn't available in California or doesn't work in California. That is simply not the case," Holt said. "H-2A has always been an option here in California, but not so much an attractive option."

Benefits of the program include being provided with a source of assured legal workers. In addition, growers learn wages and working conditions ahead of time and that remains the same for the remainder of the season. Hiring workers through the H-2A program, Holt said, will help the grower achieve work force stability. Most workers who are hired through H-2A return each year, close to 90 percent.

"This program gives you a real opportunity to develop work force stability, and from that and probably one of the most important benefits of the whole program, is the opportunity to develop productivity and efficiency," Holt said.

Through the use of the H-2A program, Hallstrom said she has achieved work force stability at her tomato-growing operation in Oceanside. Initially she started with 130 H-2A employees and this year that number has increased to 650 H-2A workers.

"Every year, work force stability is reinforced by not only the returning H-2A workers, but the new recruits. The returning employees really enjoy the opportunity to be a part of the program. They are skilled, reliable, dedicated and efficient," Hallstrom said.

Among the drawbacks to the program described by Holt include the bureaucracy of completing the application, loss of control by the farmer to hire workers and the high wage costs and other associated hiring costs. Growers must be prepared to comply with all labor laws and regulations, to open up their business and employment practices to scrutiny by outsiders, and be ready for an increase in adverse publicity and litigation. In addition, there is no flexibility regarding worker housing.

"Housing is a huge issue for many and sometimes an absolute non-starter because not everybody is capable of building their own housing right away," Hallstrom said. "Plus, there are hidden costs that employers face just trying to get through the process."

Bonnie Sears, administrative manager for Snows Lake Vineyard in Lake County, attended the H-2A seminar for her employer to learn more about the requirements for the H-2A program.

"If the legislation doesn't change for immigration reform, more and more agricultural and potentially other industries are going to need to look to the H-2A program to fulfill their work force," said Sears. "H-2A sounds very complicated and the application process could be very lengthy, so if you are here today thinking you are going to get it rolled out for this harvest, I just don't see that happening. In fact I think it would be challenging to have it done for next year."

What is important for farmers to know, Hallstrom said, is immigration reform will not change the bulk of the H-2A program, but it will streamline the process, making it easier to hire workers.

"Immigration reform will change significant pieces of the H-2A program that will make it approachable to small and large farmers and ranchers," Hallstrom said. "It needs to be flexible enough to work on the ground and that means eliminating the bureaucracy and streamlining the process so that it doesn't become a nightmare and that you can actually get workers in a timely fashion. It needs to have a fair wage in place and that is something that is currently lacking."

During Hughes' presentation to workshop attendees, she reflected on problems that occurred with immigration reform legislation and stressed the need for reform to happen in order for agriculture to survive.

"We don't have enough labor in agriculture. We are in a crisis situation right now," Hughes said. "We are seeing the crops rotting in the fields. Agriculture cannot wait another year. We need it now."

Luawanna Hallstrom shares experiences with H-2A program

Oceanside tomato grower Luawanna Hallstrom chairs the California Farm Bureau Federation Labor Advisory Committee. After having worked on the issue of immigration reform for more than two decades, and participating in H-2A programs for five years, she answers questions about the nation's temporary agricultural worker program known as the H-2A program.

Ag Alert® reporter Christine Souza spoke with Hallstrom about the H-2A program as a viable option for growers in California.

How does the H-2A program work?
Once you determine how many workers you will need and when they are needed, you file an application with the Department of Labor along with an attestation that local workers are not available (which you must substantiate through local ad placement). The department approves the application and you can proceed with foreign worker recruitment typically in Mexico through a representative. You arrange for transportation and in-country housing. Paperwork must be processed and the workers authorized to travel to the U.S. Upon their arrival they are processed by a local Social Security office. A minimum adverse wage is established as determined by the federal government for each state. All wage and housing requirements must be followed to avoid litigation.

Why did you and your family decide to take on the H-2A program five years ago?
With the tightening of national security following 9-11, and because we farm on federal land, we found ourselves at the crossroads of this very difficult decision. We either had to jump into the program in an attempt to save our harvest, lose our crop, or continue with the status quo and risk losing our ability to continue farming on federal land. At that point, we jumped into the 50-year-old H-2A program—the very program that we feared. We knew it was our only life support until immigration reform would come through.

Why is it the right time for growers to enroll in the H-2A program?
The writing is clearly on the wall. Publication of new rules dealing with the Social Security no-match rule is expected in a few weeks. With no alternative but the H-2A program, I can only advise my fellow farmers and ranchers to become educated of the option. We must be proactive and do what we can to protect our farms. That means understanding all of our options.

H-2A expert James Holt said one benefit of the H-2A program is growers are assured they will have a reasonable supply of workers. Does participating in the H-2A program guarantee that growers will get the number of workers that they need?
Although the H-2A program badly needs reform, it is the only tool out there with any type of guarantee—unlike the use of a labor contractor or your neighborhood EDD (Employment Development Department) office. The H-2A program provides the opportunity to establish and build a trained, skilled, essential legal workforce over time, tailored for your specific needs and the desire of the worker to work. It's a great opportunity for both the worker and the employer. We have a high percent of returning employees.

Can the H-2A program be used by both large and small growing operations?
Growers of any size can take part in the H-2A program but I would not advise a small grower (or any first-timer) to go it alone. In its current form, the H-2A program can be extremely daunting and difficult to work through, especially for a small farmer with little assistance to monitor and navigate.

There are plenty of reliable H-2A groups that a farmer can go to, but should be recommended by a reliable source like the National Council for Agricultural Employers. In our own business we have developed the necessary infrastructure to use the program on a large scale but are assisted by both a credible immigration attorney and labor attorney. We always have the last word and remember to dot our I's and cross our T's.

Could the H-2A program be developed for multiple employers, especially those with smaller operations?
Yes, most users of the H-2A program on average bring in about seven workers. H2A providers can run multiple applications at one time, covering many operations. The real issue here is how farmers within reasonable proximity might be able to coordinate shared housing somewhat like a co-op.

What are the major cost elements of the H-2A program?
In addition to the paperwork and recruitment costs, major expenses are housing, transportation and wages, as set under the program's adverse effect wage rate which averages wages paid and can run a dollar or more over prevailing wages. There are also hidden costs that come as a result of the inefficiencies within the difficult bureaucratic process. The wage structure is difficult primarily because of its uncertainty from year to year. Each year on March 1, new rates are established. This makes it difficult to budget and assess if one can even afford to pay the wage much less plan for it.

Holt mentioned that subsequent lawsuits and adverse publicity can come with the H-2A program. Should these negatives be feared and can they be avoided?
Being an employer in agriculture, you are open to publicity and lawsuits whether you are using the H-2A program or not. Everybody should take the possibility of lawsuits seriously. However, if you take time to understand how the program works, study it and learn from others, I believe you often can avoid a lot of the difficulties and problems that result in lawsuits. Anybody can sue you, anytime for anything. It behooves you to make sure that if you use this program you are committed to doing it right.

Under the H-2A program, how is recruitment of workers handled? It depends on if you are recruiting for yourself or if someone is doing the recruiting on your behalf. You are allowed to recruit for yourself, but not for others unless you are legally licensed to do so out of the country. Regardless, the program requires that you attempt to recruit domestic workers by placing a job order with EDD and placing various ads in local papers and radio spots to run for a designated period of time and multiple times. There have been years where we personally have spent up to $10,000 in advertising costs. Also with each application filing for a different group you must also run the same process. This is to assure that you have given domestic workers the first opportunity to apply for the job, therefore eliminating the possibility of giving alien workers jobs that Americans want. Under AgJOBS, the recruitment attestation would be streamlined.

We prefer to do our own recruiting to best establish a clear communication of what the job will entail so as to avoid any confusion. We are then confident that the interview process is complete. We believe that this aids in a more stable and secure workforce. However I do not mean to discourage others from hiring a recruiter. I do caution that you have a relationship with your recruiter and that he will work with your best interest in mind and understands the requirements and the specifics of the job. This will save you a lot of problems down the road.

How should people prepare themselves if contemplating enrollment into the H-2A program?
I encourage people to reach out to well-established organizations that have been vested in this program for some time such as the National Council of Agricultural Employers. NCAE has worked with the experts like James Holt and also has a committee within the executive board that focuses on guestworker programs only. This group is comprised of some of the leading guestworker providers and users. For more information on NCAE go to www.NCAEonline.org. Also check on future programs like the two H-2A seminars held this past July in Bakersfield and Sacramento.

How will immigration reform benefit the H-2A program?
Immigration reform is needed to streamline the bureaucracy and make the H-2A program work more efficiently to support an on-time workforce. Second, reform is needed to create reasonable program flexibility so that all agriculture finds it approachable namely within the housing requirements. The reform would create options such as the ability to give housing allowances where appropriate. Third, it is critical to establish a wage rate that is not only approachable, but is in line and representative of the type of work and the area.

Reform should create a level playing field for all agriculture. An agricultural employer should feel confident that they could use the H-2A program regardless of being a small organic farmer, mid-size family farm or a large corporate farmer. The program should be accessible and consider the diversity and unique challenges that agriculture brings.

Most of all, it is important for farmers and ranchers to stand strong together and make sure that they have a strong voice in their future. Farmers are the guardians of our land but also the guardians of our reliable, safe and domestic food and fiber—a national interest and strategic resource.

Luawanna Hallstrom is on the board of directors for Western Growers, a member of the California State Board of Food and Agriculture and serves on the U.C. Presidents Advisory Commission on Agriculture and Natural Resources. At the national level, she is Western vice president for the National Council for Agricultural Employers, co-chair for the Agricultural Council for Immigration Reform and is a member of the American Farm Bureau Federation labor committee.

Her family's farm, Harry Singh & Sons, is the largest grower of poll-ripened tomatoes in the nation.

(Christine Souza is a reporter for Ag Alert. She may be contacted at csouza@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.