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Immigration Order Shortfalls
Friday, November 21, 2014 11:33AM CST

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) -- Some migrant farm workers may see legal relief from President Barack Obama's executive action on immigration announced Thursday night, but industry experts told DTN the order will do little to solve long-term labor shortages in agriculture.

Agriculture and labor groups still hold out hope the new incoming Republican-controlled Congress will put politics aside and address many of the issues pressing U.S. farms.

The president's executive order covers a number of aspects of the immigration system. The most consequential order, however, is to protect from deportation and make eligible for work permits about 4.1 million people in the United States illegally, whose children are U.S. citizens or lawful permanent residents. To be eligible for the protection from deportation and work permits, those parents would have to have lived in the U.S. for five years.

Craig Regelbrugge, co-chairman of the Agriculture Coalition for Immigration Reform, said the president's order does not address much-needed reform of the H-2A agricultural worker visa program. "H-2A visa workers are not eligible for the deportation relief offered," he said. "They are not at threat of deportation anyway unless they violate the terms of their visa, such as by overstaying."

The expanded deferred action in the executive action, for those who have been in the U.S. for five or more years and have U.S.-born children, may affect the near-term status of a "significant number" of farm workers, Regelbrugge said.

Estimates of those farm workers affected by the order range from 250,000 to as many as 500,000. "Though how many will actually apply is an open question," he said.

Workers who do receive deferred action will be protected from deportation and have legal authorization to work, Regelbrugge said. "For the relatively small number of ag employers who are in the throes of an I-9 audit, this mechanism will allow for an alternative for qualifying workers other than to be summarily terminated," he said. "If they qualify, they could receive work authorization and continue working for the employer they know and trust."

Businesses are required by federal law to conduct I-9 audits to verify the eligibility of new employees.


Kristi Boswell, director of Congressional relations for the American Farm Bureau Federation, said there are some 1.5 million to 2 million agriculture workers across the country. Between 50% and 70% of them are unauthorized. Many migrant workers acquired the necessary paperwork to do the jobs, she said, but later find out the documents were fraudulent.

Agriculture continues to struggle to find a consistent, permanent workforce -- something the H-2A ag worker visa program is unable to do, she said.

"We were engaged with the administration and our position at the end of the day is that executive action cannot go far enough," Boswell said. "It has to come from Congress. We'll continue to focus all of our attention on Congress."

Migrant farm workers need a way to keep working in the U.S., she said, and the executive order "only addresses the short term." Agriculture's work-visa program, H-2A, is a "badly broken program," Boswell said. The program currently doesn't account for agriculture's permanent labor needs, handing out only temporary visas for seasonal workers. She said it's a common theme across the country to see farms losing money because crops are left in the fields for lack of the needed workers to harvest.


Regelbrugge said the president's action does not address ag's biggest shortcoming -- finding new workers. "This is a concern, of course, given the worsening labor shortages in the sector," he said. "Broader-based solutions will require legislation."

Boswell said the H2A temporary visa program for agriculture workers includes fewer than 100,000 workers, or just 4% of the ag labor force. "It is an untapped program because of the cost to bring workers in," she said. "They need housing, transportation -- farms almost need to hire lawyers to navigate the program."

Boswell said if Congress takes immigration reform seriously, it would move the H-2A visa program from the control of the U.S. Department of Labor to USDA, and provide longer-term visas. She said AFBF supports a three-year visa for the program, to allow the workforce to be able to use the program to work for multiple farms throughout the year beyond just seasonal work.

It may be difficult to move legislation in the next Congress, she said.

"With last night's announcement, the politics are hard," Boswell said. "Certainly there are components of ag that will feel some relief with the announcement. With the announcement, we hope the response from Congress would be to not focus on the politics but the needs. We hope to engage them on substance."


Regelbrugge said fixing agriculture's immigration problems are not as complicated as the politics would suggest. There needs to be incentives that encourage migrant workers to remain in agriculture for at least several years, he said. That could include establishing a new, "market-oriented" agricultural visa program such as what was included in Senate bill 744 that passed last year.

Regelbrugge said the president's action could cut both ways for agriculture.

"Many employers will want to do what they can to assist employees, though there are plenty of complicated legal scenarios to work through," he said.

There are legitimate concerns that legal work authorization will open up additional employment opportunities for workers who receive deferred action, Regelbrugge said, and that it will speed up the attrition of these workers.

"To be candid, nothing is forcing these workers to stay in agriculture now, so the seriousness of this threat is hard to gauge," he said. "Time will tell, and ag employers should do all they can to try to retain skilled current workers. We are also concerned that there will be a lot of misinformation and confusion, and that unscrupulous individuals may take advantage of vulnerable immigrants in the process."

Boswell said S.744, "was a huge step forward" for agriculture. That bill would be helpful, she said, because it would begin to offer a solution for bringing in new workers.

"We supported the bill strongly," Boswell said. When it comes to labor needs in the Corn Belt, Boswell said, corn and soybean farms aren't really affected by the labor shortage. Rather, dairy and swine farms and custom harvesters and specialty crop farms face the largest worker shortage.

"Americans aren't coming out to farms to do the work," she said. "Where it hits all of agriculture is every farmer feels the pain of not getting a crop out of the fields. We're seeing, all over the country, crops being left in the fields."

Anthony P. Raimondo, an attorney with Raimondo and Associates based in Fresno, Calif., a firm that specializes in labor relations and employment law, said he's concerned that the president's action will leave some migrant workers in danger.

"What agriculture needs is a change in the law that we can rely on to establish long-term stability in the labor pool," he said. "This can only be accomplished with a bill. What we have now is a two-year period of turmoil followed by uncertainty. This is not a solution. My biggest concern is that, with perceptions that the 'humanitarian' crisis has been averted, there will be no momentum for meaningful, long-term reform."

Raimondo said the president's action is "largely symbolic and political" to put pressure on a Republican Congress to pass a reform bill. "What agriculture needs is a long-term, stable and legal labor pool. The president's actions do not change the law. He is choosing to order agencies that are part of the executive branch to refrain from removing certain categories of people, and he is offering certain categories temporary-work authorization. While temporary work authorization offers some marginal help to agriculture, it is really not that significant because it is only temporary."

Raimondo said the president has not addressed any changes in worksite enforcement. "Employers need to be careful because they can face exposure when employees seeking to obtain temporary work authorization admit their undocumented status," he said. "We have no guidance on how to proceed in this area."

Todd Neeley can be reached at todd.neeley@dtn.com

Follow Todd on Twitter @toddneeleyDTN


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