Immigration reform to ease farm labor crunch could face new and unexpected hurdles

Key Points
  • The Trump administration last month said it was committed to modernizing the nation's temporary agricultural worker visa program.
  • But there's a fresh report the administration may cut back on the number of so-called H-2A visas for temporary agriculture workers.
  • Trimming the number of agricultural worker visas could make it even tougher for farmers to find labor to harvest crops and spell trouble for larger immigration reform efforts.
  • The agricultural visa program has more than doubled in the past decade and last year included more than 200,000 certified temporary jobs.
A file photo of Mexican agricultural workers on a farm in Holtville, Calif.
Getty Images

The Trump administration's pledge to modernize the nation's temporary agriculture worker visa program could face new obstacles if it's dependent on broader immigration reform.

After hearing widespread complaints about farm labor shortages and flaws in the temporary worker program known as H-2A, the administration last month announced it wanted to update the agricultural visa program that dates back to 1986. The H-2A program has more than doubled in the past decade and last year included more than 200,000 certified temporary agriculture jobs.

The agricultural community has sought to reduce the costs of the H-2A program as well as to trim what it considers cumbersome bureaucracy. Some changes to the current agricultural guest worker program could be made by federal regulators but others will require congressional action.

Hurdles to update ag visa program

There have been several failed attempts by Congress in the past several years to revamp the H-2A program, which allows U.S. agricultural employers to hire foreign nationals to perform temporary or seasonal work. And now the White House's policy to split up migrant parents from their children has ignited a new front in the immigration debate and perhaps another obstacle to getting major reforms to the farm worker visa program.

Another potential hurdle is the possibility the administration may cut back on the number of visas for temporary agriculture workers, which Politico reported Monday could be part of a broader immigration clampdown ahead of the fall midterm elections. There is currently no statutory limit on the number of H-2A temporary agricultural worker visas issued by the federal government.

Scaling back the H-2A program could spell trouble for larger reform efforts designed to help the agriculture industry.

Several industry executives expressed concern about the report of limiting the number of agricultural worker visas and suggested it could potentially hurt farmers depending on how it's done. They also are worried it could represent a reversal of the administration's past pledge to end burdensome policies on farmers.

Farm states where Trump has a strong base already are worried about the impact of a possible trade war with China and uncertainty surrounding the North American Free Trade Agreement with Mexico and Canada. Some experts suggest changes to the H-2A temporary agriculture program that make it more difficult for growers to get farm workers could backfire on the administration.

Last January, President Donald Trump spoke to the American Farm Bureau Federation's annual meeting and promised his administration was "putting an end to the regulatory assault on your way of life." He also spoke about how the industry had been hit by a "relentless intrusion" by a number of federal agencies.

CNBC reached out to the White House for comment.

Trump has rejected comprehensive efforts at immigration reform unless it includes full funding for his border wall and other changes generally opposed by Democrats.

Still, one of the top priorities for the agricultural industry is to create a market-based visa program since there are criticisms the current program needs more flexibility and options for farmers. Despite its flaws, growers around the nation have turned to the H-2A program to find seasonal or temporary help to harvest crops and perform a number of other tasks on farms.

"It's expensive, it's a lot of red tape and you have to be way out in front of your date of need," said Brian Reeves, a partner and co-owner of Reeves Farms, a grower of berries and vegetables just outside Syracuse, New York. "It just complicates your life in a number of ways."

Crops rotting in field

Reeves remembers the first time he participated in the H-2A temporary ag worker program he filed an emergency application to get help in what was supposed to be about 30 days. "They showed up in 50 days maybe and we lost a third of our strawberries," he said.

Some changes to the current agricultural guest worker program could be made by federal regulators but others will require congressional action.

"We really need immigration reform to deal with our labor availability issues because we need to codify some of these modernization efforts into the H-2A program," said Jason Resnick, vice president and general counsel of Western Growers, a California-based trade group representing farmers and their workers who grow about half of the nation's fresh fruits, vegetables and tree nuts. He said another option is to improve on the current program or "scrap it altogether for a new guest worker program."

H-2A modernization efforts

Last month, the Trump administration said it was "committed to modernizing the H-2A visa program rules in a way that is responsive to stakeholder concerns and that deepens our confidence in the program as a source of legal and verified labor for agriculture." No firm date has been supplied on when the administration may present its plan and officials declined to comment beyond the press release issued last month through the U.S. Department of Agriculture.

At the same time, the administration has proposed "improving the H-2A visa program and substantially reducing its complexity" as well as "to incentivize farmers' use of the E-Verify program to ensure their workforce is authorized to work in the United States." E-Verify lets employers see if they are hiring legal workers but some industry groups have resisted efforts to make it mandatory because they say it could harm agriculture and rural communities and cause farm production to drop by up to $60 billion and result in higher food prices for U.S. consumers.

According to Resnick, the current H-2A program "lacks flexibility" for such things as staggering worker start times to have the most workers at the season peak or accommodating changes in harvest needs. He said the Obama administration made the program "more onerous" with regulations so the industry is encouraged that the Trump administration is looking at streamlining.

Housing shortage adds to farm labor crunch

Farmers spend on average about $2,000 to bring H-2A workers into the United States and there's added costs since they have to cover visa and consulate fees as well as transportation and housing.

A chronic shortage of affordable homes in California also has made it more challenging for growers to attract farm labor and to house temporary H-2A workers. This has been the case in both farming communities in the state's Central Valley as well as other areas, including the state's coastal farming areas in Ventura, Santa Barbara and San Luis Obispo counties.

"To find the domestic labor force that comes day after day is nearly impossible," said Ryan Talley of Talley Farms near San Luis Obispo. "When the economy is doing well like it is in California, these workers go off to construction, hotels, landscaping and other industries to find jobs where they can get paid more. Agriculture kind of ends up being one of the last on the list."

California is the fourth-highest user of the H-2A program in terms of states, following Florida, Georgia and Washington state. Just a few years ago the state wasn't even in the top 10.

For many years, the hired farm labor force in states such as California has been composed of mostly immigrants, many without full or proper documentation, according to industry experts. Even today, some estimates place the number of undocumented agriculture workers at nearly 40 percent.

The H-2A program has more than doubled in the past decade and last year included more than 200,000 certified temporary agriculture jobs. Agricultural employers using the H-2A program are primarily growers of fruits such as berries, apples and melons as well as vegetables and tobacco.

"It's growing rapidly, and I think that's more attributed to necessity that farmers have than it is the attractions of the program itself," Paul Schlegel, managing director of public policy and economics at the American Farm Bureau Federation, the country's largest general farm organization. "Even though the program is difficult to manage, what it does provide growers is a greater degree of certainty that they will get the labor they need."

Call to add dairy to ag visa program

Schlegel wants to see the H-2A temporary agricultural worker program expanded to include the dairy industry and year-round farming operations — a change that would require congressional action. A legislative proposal to add the dairy industry as part of a rider on an appropriations bill failed last year.

Similarly, a proposed immigration reform bill in 2013 by a group of bipartisan senators failed. It sought to replace the H-2A program with a plan allowing visas for full-time agricultural employment.

The industry is hoping to see a change in the so-called 50 percent rule since they complain it can be expensive and disrupt farming operations. The 50 percent rule requires employers to offer employment to any qualified and eligible domestic worker who applies for the position up until the first half of the contract period. And for every domestic worker hired, they have to send home a H-2A visa holder.

"It's kind of funny because hardly anyone shows up for these jobs," said Reeves. "I understand why they want to protect American workers and American jobs, although there ought to be a certain period of preference for those workers but not 50 percent of the contract. Maybe it should be the first week of employment but not halfway."