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Commentary: Immigration policy must include a ‘bridge’ for farms

Issue Date: April 20, 2011
By Bryan Little
At a time of increased immigration audit activity and congressional calls to implement an electronic system to verify employees’ work eligibility, California farm employers need policymakers to focus on solutions that can ensure a legal, stable labor supply.
Bryan Little

Right now, California farm employers are caught between the proverbial "rock and a hard spot" when it comes to hiring eligible employees.

Immigration audits conducted at the Matsuda Nursery in Sacramento in late March led to the dismissal of 71 employees—a majority of the nursery's work force—at the very time it was heading into its peak shipping season. Was the audit an isolated incident or a distinct likelihood for any other employer?

The Immigration and Customs Enforcement Service has made it clear that such audits are frequently complaint-driven, but many agricultural employers, particularly those near urban areas, might be vulnerable to "tipsters" contacting ICE. It's still a random chance at this point, with a few thousand out of millions of businesses selected nationwide for audits, but certainly not out of the realm of possibility for any employer.

While the audits are random and most are done with "cause"—and while farm employers must continue accepting documents from potential employees that appear genuine but may not be—ICE says the agency is merely doing its job.

This new interest in enforcement by the federal government may lead some California farmers to wonder about using the existing H-2A program, run by the U.S. Department of Labor, which provides a means to recruit and hire temporary agricultural employees from a foreign country.

Although some farmers have been able to use H-2A, it has not proven to be a good option for most California farmers—roughly 1 percent of the California farm work force comes through the H-2A program, and most of the operations that use it have relatively long seasons and somewhat more predictable work patterns.

The H-2A program also requires farmers to furnish employees with on-site housing, to complete a difficult and lengthy certification process to prove to the Labor Department that employment of H-2A workers won't displace American workers, to have a strong sense weeks in advance of how many employees are needed and when they will be needed, and to have the means to recruit in a foreign country. In addition, more often than not, those farmers trying to use the program have been sued over technicalities, especially in the first year of use.

Soon, there could be another twist as Congress considers legislation to ratchet up enforcement another notch. It's called the E-verify program: electronic verification to determine before an employee starts work if that potential employee is eligible to work.

The recession has put pressure on elected officials and policymakers to ensure that "American" jobs are "filled by Americans," apparently without regard to whether "Americans" seek these jobs. American agriculture has made a strong case that there is no U.S.-born work force available for farms and ranches. Some of our more thoughtful elected leaders and policymakers have acknowledged this fact.

But Rep. Lamar Smith, who represents the San Antonio area in Texas and chairs the House Judiciary Committee, is determined to bring an E-verify measure to a vote in the House of Representatives—perhaps as early as before its summer recess—requiring all employers to use the system. It's unknown at this point whether he has the votes to pass the measure in the House, and the bill will face stiffer opposition in the Senate.

With both increased immigration audit activity and potential E-verify legislation in the not-too-distant future, the pressure is on employers to serve as immigration enforcers and, until there is an effective guestworker program, California farm employers have nowhere to turn.

So, how can farmers and ranchers respond if Congress imposes the E-verify requirement universally, for all industries and employers? How will agriculture cope with what will almost certainly be a major disruption in its labor supply?

Some advocate for a solution that is exclusively focused on improving the H-2A program, streamlining it and making it less expensive and less burdensome for farmers to use. H-2A program improvements are a worthwhile effort, and could help bring an effective, long-term means of ensuring a legal, stable labor supply. Unfortunately, the H-2A program has traditionally furnished about 2 percent of the nationwide agricultural work force. Given its bureaucratic flaws, even if the program could be tripled in size overnight it could not come close to supplying the needs of farms and ranches on a national scale.

Farmers and ranchers will require an effective bridge to the future from the present reality: A majority of employees acknowledge to U.S. government surveyors they are not legally eligible to work in the U.S., but they furnish documents to employers to complete the I-9 documentation process that reasonably appear genuine and related to the person presenting them, as the process requires.

Policymakers can—and probably will—try to blunt the devastating impact of E-Verify on agriculture by building in transition periods and tinkering with guestworker programs like H-2A. But it is essential to find a means to allow some agricultural workers, who came here illegally because the H-2A program and other legal means of entry are so woefully broken, to continue to work in the U.S.

Farmers need policymakers to build the bridge by which we can reach our future, to assure the plentiful supplies of domestically grown fruits and vegetables that Americans enjoy today.

(Bryan Little is director of labor affairs for the California Farm Bureau Federation and chief operating officer of the Farm Employers Labor Service. He may be reached at

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

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