Food Service & Agriculture, Government, and Law

Farmers pick guest-worker program for migrant labor

February 26, 2013
| By Pete Daly |
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Employers keep eye on immigration debate
Findlay

Michigan agriculture has a lot at stake in the immigration laws being debated in Congress right now, more so than most farm states, according to Michigan Farm Bureau, the state’s largest farming organization.

“Our current immigration system is broken, frankly, so we’re definitely encouraged to see this renewed bipartisan interest in reform,” said Ryan Findlay, national legislative counsel for Michigan Farm Bureau.

Eight U.S. senators — four Republicans and four Democrats — are working on proposed legislation that addresses four issues: homeland security, legal qualifications for employment, the status of 11 million illegal immigrants already living in the U.S., and a guest worker program.

What the MFB calls “a workable, farm-friendly guest worker program” is the biggest issue to Michigan farmers who rely on migrant workers.

“That is huge,” said Findlay. The Senate proposals on the table include a guest worker program for agriculture and a separate one for highly educated professionals who come to work in the U.S. STEM industries (science, technology, engineering and mathematics).

Florida Senator Marco Rubio, one of the eight behind the proposals being debated, said recently that American farmers need immigration reform because they have no way to legally hire migrant workers from Mexico.

Florida, like Michigan, has an agriculture industry that relies heavily on temporary workers from Mexico and other Central American countries.

However, there actually are two types of nonimmigrant visas for foreign nationals coming to the U.S. temporarily to work: H-2A for agricultural workers and H-2B for non-agricultural. Under both programs, the employer submits applications requesting the certification of a particular number of positions. The employer has to obtain Department of Labor certification that there are not sufficient workers who are able, willing and qualified for those jobs. The DOL also must certify that the employment of an alien will not adversely affect the wages and working conditions of workers in the U.S. who are in similar jobs.

Farmers have long insisted they can find no Americans willing to harvest fruit and vegetables, which can be very hard work and, in the case of some readily perishable crops, often entails working long hours, including weekends.

Joe Klein Sr. of the Royal J. Klein & Son farm in Sparta Township has about 180 acres of apples, which in a good year requires a crew of 25 to 30 pickers. The migrant workers who pick Klein’s apples usually start out the year picking oranges in Florida and then follow the vegetable and berry crops north, where fruit completes the season.

One of the guest worker proposals Klein has heard — and likes — would require each guest worker to return to Mexico for a minimum period each year, with some mechanism for obtaining citizenship, “but it would take quite a while to do it.”

Klein said requiring a guest worker to return to Mexico periodically is usually not a problem.

“A lot of these guys really like to go back home. They plan on it,” he said, for a month or two each year to be with family.

What if Congress does not make any changes in current immigration law?

Klein said that would be the worst-case scenario.

“Then we wouldn’t get a guest worker program, which means that there is going to be a shortage (of harvest labor) if we don’t have some kind of program which allows seasonal workers to come to this country without fear of being deported,” said Klein.

“A lot of them have stopped coming up here,” he added, noting “there was a shortage two years ago in the U.S. of farm workers.” It’s not clear if there would have been a labor shortage last year because the disastrous spring frost destroyed most of Michigan’s apple crop.

Klein said the shortage of migrant farm workers happened “because the farm workers were concerned about being here illegally, and there was a lot of pressure being put on them, as far as being caught and deported back, and the borders were being tightened up at the same time. So a lot of them decided to stay in Mexico and not come here.”

In recent years, the federal government has stepped up enforcement of laws regarding people who are in the country illegally. In FY2012, the federal Immigration and Customs Enforcement agency sent 409,849 people back to other countries. Fifty-five percent of those were convicted criminal aliens, the vast majority for crimes involving drugs or driving under the influence.

While it is not clear what percentage of the deportees overall were non-criminal, migrant farm workers, indirect pressure has increased on them, too, because the government has stepped up enforcement actions against all U.S. employers who hire people who are in the country illegally.

“I heard they hit a record with the 400,000-plus” deportations in 2012, said Susan Im of Im Law, a Grand Rapids law firm that specializes in immigration law. She said it surprises some people to learn that the Obama administration has been tougher on illegal immigration than the Bush administration.

She noted that the Obama administration favors comprehensive immigration reform and has taken some actions construed by some as “pro-immigrant,” but she also noted that the Obama administration has tried to show balance by being “tough on the employers who aren’t playing by the rules.”

Im said about 70 to 75 percent of her practice is representing employers facing immigration legal issues, and many of those are agricultural employers. She said she must advise her clients that “once you have actual knowledge that (an employee or employees) aren’t eligible to work,” they must terminate those employees.

Im said some of those situations are “absolutely heartbreaking” because the illegal workers may have long been among the farmer’s best workers and considered personal friends.

As their attorney, she said she has had to tell clients, “You have a very tough choice ahead of you. Either terminate their employment, or continue to employ an unauthorized worker and be prepared to face sanctions. And that’s not a good place to be in. It’s a clear example that our laws are broken.”

Im said she has witnessed “drastic situations” where a farmer has discovered that a third of the work force was unauthorized to work.

Farmers often say they would love to hire U.S. workers — and do hire them, said Im, and while some prove to be good workers, many only last a couple of days before quitting.

For now, said Im, employers — farmers, especially — are interested in anything Congress does to change the immigration laws.

“When I speak to these employers, they say, ‘We just want to see something resolved because what we are faced with, as an employer, is a non-workable situation,’” said Im.

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