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Labor Pains

Coping, advocating, and possible solutions
Legal Ease

Nevertheless, many growers have had no choice but to use the H-2A program as a legal means to the labor shortage, to bring foreign workers into the United States for temporary or seasonal agricultural services. In return, employers must provide workers with a contract, prevailing wages, housing that meets federal, state, and local standards, meals and transportation, and adhere to specific recordkeeping requirements. Other rules govern the number of hours and time laborers can work.

Pros and mostly cons
In 2015, there were 7,195 applications certified, covering 139,832 positions. Florida and North Carolina topped the list of states using the program. Last year, California saw a surge in certified positions with 8,591 compared with 6,043 in 2014. But nationwide, only about 6 to 7 percent of growers participated in the program, and 53 percent of hired farm workers responding to a National Agricultural Workers survey said they were not legally authorized to work. Growers say the percentage is much higher and that many “legals” simply have false documentation.

The problem, industry experts say, is that the visa process remains complicated, time-consuming, and expensive. It involves three governmental agencies (the Department of Labor issues H-2A foreign labor certifications; the U.S. Citizenship and Immigration Services adjudicates H-2A petitions; and the Department of State issues visas to the workers at U.S. consulates abroad). And although Western Growers conducts outreach programs to educate members about H-2A and how to remain in compliance with labor laws, and will complete applications on members’ behalf, it is neither a viable solution to the problem nor a particularly positive experience.

Timing is everything
For growers of perishables, time is of the essence. Smith says there’s a big gap between filling out the application and actual need, and before growers can even apply, employers must file a job offer with their state workforce agency.

“We have to advertise in three newspapers 60 to 75 days prior to the need for workers,” asserts Maureen Torrey of Torrey Farms in Elba, NY. Department of Labor applications and all required documentation must be received at least 45 days in advance, then the agency approves or rejects the application 30 days before an employer’s date of need. “I have to estimate when I will need workers,” she says. “It’s like rolling the dice.”

Torrey also decries the lack of flexibility in the system. “Mother Nature controls us; if I have a hail storm and lose a crop, I can’t transfer workers to another farm. We have to pay 75 percent of workers’ wages even if they don’t work.”

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