Immigration: What’s ‘workable?’ | Michigan Farm News

Immigration: What’s ‘workable?’

Category: People

by Paul W. Jackson

Immigration_MFN_9.14.18
“When a farmer gets caught up in that six percent error rate, the frustration and legal challenges are 100 percent real.”

As protesters encourage anarchy and political parties seek an advantage, American society has built a wall of misunderstanding.

Call it naivety or even politicization, but few involved people would disagree that U.S. immigration policy has more holes than any border checkpoint.

Even fewer observers are aware of ignored workable solutions to a problem that cries out for balance, compassion and adherence to law.

Farmers, of course, hope society understands that they want all that for their workers and farms, but the only way to get it resides in the word ‘workable’ when it’s attached to immigration policy. Policy based on rhetoric seldom, if ever, works.

If you want ‘workable,’ consider this: Many Michigan farmers provide licensed housing that’s widely regarded as top-notch, nationally. Midwest field workers’ average wage in April 2018 was $12.28, according to the USDA’s Economic Research Service, and workers under an H contract earn a minimum of $13.06 plus housing and transportation (U.S. Department of Labor).

Also, for years, many Michigan farmers have provided incentives and bonuses during harvest that boost wages well beyond that minimum. In some cases, due to unregulated foreign product and other factors, high wages have led to reduction or elimination of food production.

But when it comes to adherence to labor law, farmers face an inherent balancing act within the rules. It’s called a Catch 22.

Reasonable difficulties

While an appropriate application of the phrase is ‘you can’t have a job unless you have job experience,’ for farmers, the last Merriam-Webster Dictionary definition of “Catch 22” seems more appropriate: “a hidden difficulty or means of entrapment.”

If the next generation of politicians want to plug the gap between high-minded sanctuary and society’s need for farm labor, perhaps sanctuary from the mass of messy rules, guidance, agencies and agendas would be in order.

Also in order is to ask why farmers find it so difficult to follow confusing law, recruit a workforce and get the crop harvested on time and with excellent quality. The answer? Hidden difficulties.

“The issue almost always boils down to the age-old problem,” said Katie Vargas, operations manager with Great Lakes Ag Labor Services. “Farmers can’t find enough workers. They try to secure ag labor through the domestic routes, but they get to the point where they can’t find anyone, and they’ve been continually frustrated by complexity and cost,” she said.

First the complexity. Not only do farmers who seek labor through traditional “domestic” methods need to keep up on law, they need to understand and keep current on “guidance,” a bureaucratic method of enforcing the law by giving the respective agency’s field staff clarification about how to handle complications.

Farmers need and want a legal, reliable and adequate labor force to provide safe, healthy an abundant food for the U.S. and the world, said Craig Anderson, manager of Michigan Farm Bureau’s Ag Labor and Safety Services.

“When a farmer is hiring, he must accept an identification document(s) from a list which includes many things, including a driver’s license or Social Security card,” he said. “According to the government’s Form I-9, instructions and guidance, the document(s) must appear ‘reasonable.’ But what is reasonable? Farmers aren’t forensic scientists or document cops, and finding what is invalid is not readily discernable in the guidance,” he said. “And even if the document is “reasonably” valid, it may not remove or reveal the legal status of the individual. Farmers aren’t allowed to question a “reasonable” document.

“Along with that complication is entrapment,” Anderson said. “An employer can’t fill out the required I-9 form until after a job offer has been made and accepted, and the employee has three days to produce a “reasonable” document(s). The employer can’t require specific documents such as the Social Security card. They also cannot demand the Social Security number during the I-9 process unless they’re in E-Verify. But verification only checks if the social security number/name match. It doesn’t determine if the individual is the authorized holder.”

E-Verify, of course, is touted in some political circles as the solution to agriculture’s documentation issues, even though, according to a recent report from the Department of Homeland Security, it’s 94 percent accurate.

“While the overall accuracy rate has significantly improved, the rate for immigrants is significantly lower,” Anderson said. “But when a farmer gets caught up in that “error rate,” the frustration and challenges are 100 percent real. Verification does not mean the worker could not be removed for immigration-related issues.”

The bureaucratic legal alternative

Since 1986, the H2A program has been the only alternative for farmers to employ legal aliens for seasonal work. But it’s complicated and costly, said Kent Karnemaat, a Fremont commercial vegetable grower.

“This is our third season in the H2A program, and it’s going well,” he said. “There are a few drawbacks, but we’re happy that we’re getting trained workers, and the same ones come back. We’re building relationships with them, and that’s helpful. We have no legal worries and we know it’s being done the right way through our contractor. Under the H program, we’ve never gotten to the field in the morning to find we have no workers. Absenteeism is far less. They are dependable workers.”

While the Karnemaat family had good relationships with workers under the current dysfunctional clearance order system, the H system, it’s hoped, will help develop the same long-term connections.

“We had a lot of people (under the traditional domestic route) who were with us for 40 years,” Karnemaat said. “We had kids of parents and grandparents, so it was a good situation. But in the last 15 years or so, that entire population began transitioning into general employment, and they have the same expectations you and I have. Now, on a Saturday morning, they want to be at their kids’ soccer games. That’s fine, and we have no problem with that, but it isn’t a good fit for our goal to get the crop in. With the H program, we’re able to match available work with the worker.”

Unfortunately, Karnemaat said, the H2A program is extremely expensive, and not just because of the paperwork. Under H2A, the government, not the labor market, mandates wages.

“It’s increased our costs significantly,” he said. “About a third of the things we did we no longer do because there’s not enough margin. A lot of commodities have a margin so low we can’t cover the labor cost.”

Despite the cost, farmers increasingly choose the H2A program, Vargas said.

“They have to have workers,” she said. “We had one employer who lost $300,000 before he went into H because the crop couldn’t be picked. Yes, H is expensive, but when you have a loss that big, there’s no returning from that.”

Because of the cost, Vargas said farmers continue to look for creative ways to secure seasonal labor, but the fact is that few enticements, including high wages, work. Farm labor is that scarce.

“People who argue that foreign labor is taking jobs from people here have no idea what they’re talking about,” Karnemaat said. “If they picked crops for an hour, they’d drop the bucket and want to sit in a chair. Yet they say they’d pick. They say these are jobs their kids should have, or U.S. citizens should have. It’s not going to happen. They need to understand how precarious fresh food is and how much it costs. Maybe it’s our fault that we don’t communicate that well, but we’re kind of busy to make that part of our jobs too.”

Part of the problem, Anderson said, is that most of society doesn’t have to deal with the same level of frustration in everyday life.

“In many cases of farmers who’ve been caught up in the government spider web, it’s gone beyond a Catch-22 to a ‘damned if you do, damned if you don’t’ situation,” he said. “Even when a farmer follows the rules as best she can and is told there are no violations, she may still lose a significant part of the workforce. Right now farm employer training is emphasizing how not to discriminate in recruiting during the on-boarding process and during employment. Under current rules, employers may need to fire one legal worker to replace with another legal worker. It just adds to the cost of finding and maintaining labor. And too often, the system as it deals with farmers tends to take the ‘guilty until proven innocent’ approach.”

All these issues for farmers, however, are easily ignored by the public mind when angry protesters are in the camera lens.

Still, Vargas said, there is some progress when farmers go through the H2A program.

“Government agencies have streamlined the process in the last few years, and it’s made a huge difference in getting the worker applications turned around,” she said. “But the paperwork process is still very complex.”

Karnemaat said the farm labor situation is crying for a legislative solution.

“The wheels usually turn slowly,” he said. “We have to keep grinding.”

“With hunger being a significant issue,” Anderson said, “why do we continue with immigration rules that put up walls to food production instead of tearing them down?”

Michigan Farm Bureau is asking members to hold their federal elected officials accountable to making decisions and taking action. Otherwise, increasing immigration enforcement without reforming the nation’s worker visa program could cost America $60 billion in agricultural production.

Text “MI LABOR” to the number 52886 and click on the link provided to enter your information and submit the comments provided to your member of Congress. A phone call option is also available. You can also easily complete the action request on our website.