WISCONSIN, August 9, 2017 - The Trump administration is reviewing ways to increase the number of legal foreign farmworkers, but a potential solution is likely to require action by Congress.

Labor is a huge issue and weve got people working on it full time to provide some reasonable solutions not only for agriculture people but for the American people,” Agriculture Secretary Sonny Perdue told Agri-Pulse on the sidelines of his Aug. 3 appearance at the Wisconsin State Fair.

Labor shortages and federal immigration actions have been a chronic concern in the dairy industry, as well as other sectors of the livestock industry and in fruit and vegetable production. Dairy producers’ main complaint is that the H-2A visa program for farmworkers is limited to temporary, seasonal employment. Fruit and vegetable growers are making increased use of H-2A but they argue that the wage rates and paperwork requirements are too burdensome.

Perdue said USDA has been tasked with developing proposals for Congress to consider –likely in legislation outside of the farm bill – but he didn’t offer any details.

Perdue’s Mexican counterpart, Jose Calzada, raised the issue during their meeting in Mexico last month. At the end of the visit, Perdue was asked on a conference call with news reporters whether the administration was seeking to resurrect something like the 1950s Bracero program.

Nearly 50,000 farms employed more than 400,000 Mexicans a year at the peak of the Bracero program, which was originally initiated by the Franklin D. Roosevelt administration under a bilateral agreement with Mexico, according to the Congressional Research Service. Critics said that the labor protections for the Mexican workers were often ignored or poorly enforced.  

Perdue told the reporter USDA was “working on a program that could provide a legal guest worker program in the U.S., that would provide their (Mexican) citizens the opportunity to float freely, seasonally, temporarily, into the U.S. for the work and come back to visit their families in their homelands.”

Farmers, meanwhile, are urging the administration to rewrite rules for the H-2A program to make it easier to use. Growers are increasingly relying on the program in part because of Immigration and Customs Enforcement audits that forced illegal immigrants to leave the operations.

Jon Wyss, who manages an apple and cherry orchard in Washington state, told a House Judiciary subcommittee last month that he was forced to start importing H-2A workers in 2010 after an ICE audit forced the farm to fire much of its workforce. He now employs 2,000 H-2A workers a year but says the Labor Department’s regulations are outdated and unnecessarily cumbersome. Among the requirements, he said, is that the farm run “expensive want ads in newspapers containing inch after inch of fine print mandated” by department regulations.

“This expensive, yet worthless, exercise is emblematic of a bureaucracy trapped in a 50-year-old perspective of the economy,” Wyss said. “When was the last time anyone, particularly a farmworker, searched a newspaper looking for a job?”

Proposals have been floating around Capitol Hill for years to replace or expand the H-2A program. Sen. Dianne Feinstein, D-Calif., tried without success to attach her AgJOBS proposal to a farm bill extension in 2007. In addition to liberalizing the H-2A program, Feinstein’s bill also would have offered legal status to current workers who are in the country illegally. The Senate included a similar measure in its 2013 comprehensive immigration bill, but the legislation died in the House.

House Judiciary Chairman Bob Goodlatte, whose committee has jurisdiction over immigration law, plans to re-introduce legislation, called the Ag Act, to eliminate some of the requirements of the H-2A requirement while providing legal status to existing workers. Under the bill, farms would no longer be required, for example, to provide free housing and transportation and recreate the pitfalls of the H-2A program. The bill also would allow farms to pay lower wage rates than now required by the Labor Department.

Rep. Bob Goodlatte

House Judiciary Chairman Bob Goodlatte, R-Va.

“Agricultural employers who participate in the H-2A program do so as a matter of last resort, and because they want to uphold the rule of law,” Goodlatte said at last month’s hearing. “A guestworker program should help farmers who are willing to pay a fair wage for law-abiding, dependable workers, not punish them.”

Industry groups are encouraged by Perdue’s recent statements.

Frank Gasperini, executive vice president of the National Council of Agricultural Employers, said that in addition to legislative ideas, USDA also is advising the administration on possible administrative changes that could be made to the H-2A without action by Congress. That work is being led by Kristi Boswell, a former labor policy specialist with the American Farm Bureau Federation.

Having a USDA Secretary and staffers who are conversant with labor intensive agriculture - and who openly acknowledge the importance of labor supply issues to the future of American agriculture – is a breath of fresh air,” Gasperini told Agri-Pulse.

Craig Regelbrugge, senior vice president for industry advocacy and research for AmericanHort, said that Perdue “understands the need and urgency of this issue and we hope he’ll do all he can to move reform forward in any way that can happen – policy changes, regulatory fixes, legislative reforms. The latter is obviously the best way forward since the other options can’t get at the totality of the problem.”

But getting a bill through Congress, even one that would make more modest changes than Goodlatte’s, would require at least some support from Democrats in the Senate, and that is a high bar. Republicans control only 52 seats in the Senate and it would take 60 to break a filibuster.

The agriculture provisions in the 2013 bill resulted from an agreement between farm groups and the United Farm Workers, which insisted on worker protections that are not in Goodlatte’s bill.

“A one sided solution wont work,” said Zoe Lofgren, the ranking Democrat on House Judiciarys immigration subcommittee.  The 2013 bill “shows that all sides can reach a balanced bipartisan agreement when we work together for a common purpose,” she said.

Giev Kashkooli, political and legislative director for UFW, said at the July hearing that providing a path to citizenship for existing workers would be a critical first step in any compromise. He also defended the existing H-2A requirement for farms to provide free housing, saying that workers were sometimes at a site for only two to four weeks at a time.

Still, farm groups say they haven’t given up hope of a legislative solution in this Congress. Senators as well as House members now say the agriculture issue won’t be fixed by comprehensive immigration reform but “by a series of smaller bites,” said Gasperini.

Perdue said he understands the importance of migrant labor to farms.

“I think most everybody acknowledges it’s very difficult to find an American worker who wants to milk cows 365 days a year twice a day. I’ve done that and I don’t want to do it again,” Perdue joked, while speaking to Agri-Pulse in Wisconsin.

“That’s why the guest worker program is so important to agriculture when you look at it overall, not just from a seasonal harvesting (perspective) but many other sectors also, from California to Florida, depend on those workers.”