By TIM THORNBERRY
Kentucky Correspondent

FRANKFORT, Ky. — Bluegrass State farmers are facing a mounting labor problem as they have grown dependent on immigrant workers in recent years to help produce their crops while immigration laws have stiffened.

Last year new restrictions on the number of immigrants entering the country created a shortfall of workers at harvest and wreaked havoc on many producers during their most critical time of year.
This year remains uncertain as many producers are gathering information to locate workers using legal conventional methods such as the H2A process. Farmers are also watching the immigration debate in Washington. D.C.

According to the U.S. Department of Labor (DOL), “the H2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.”

Before the U.S. Citizenship and Immigration Services (USCIS) can approve an employer’s petition for such workers, the employer must file an application with the DOL stating that there are not sufficient workers who are able, willing, qualified and available, and that the employment of aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers.

The statute and regulations provide many worker protections and employer requirements regarding wages and working conditions that don’t apply to non-agricultural programs. The DOL’s Wage and Hour Division, Employment Standards Administration (ESA) is responsible for enforcing provisions of worker contracts.

The DOL defines temporary or seasonal nature as “employment performed at certain seasons of the year, usually in relation to the production and/or harvesting of a crop, or for a limited time period of less than one year when an employer can show that the need for the foreign worker(s) is truly temporary.”

The problems many farmers have faced with the H2A program; however, have been economic as well as endless red-tape associated with the federal program.

Paul Hornback is a farmer in Shelby County who has used the H2A program for 13 years. While it has provided him a consistent workforce, he said it has also been frustrating. “The program is expensive and cumbersome because of all the paperwork, but it ensures me a legal, stable, consistent labor force,” he said.

The expense stems from the fact that a producer is responsible for housing and travel costs for H2A laborers as well as 30 hours of guaranteed work per week. Add to that a guaranteed salary figured by adverse effect wage rates (AEWR) and a producer’s cost can increase dramatically from an already narrow bottom line.

Hornback goes through many different random inspections each year including housing. “Basically, from the time they leave home until the time they go home, I have to furnish them nearly everything except food,” he said. “This works well for them because they know when they come up here they have a contract.”

For Hornback the majority of his labor needs come with his 150 acres of tobacco. He also raises 1,700 acres of row crops and 250 head of cattle.

The AEWR are the minimum wage rates which the DOL has determined must be offered and paid to U.S. and foreign workers by employers of non-immigrant foreign agricultural workers.

The AEWR for Kentucky is $8.65 per hour but that figure is inflated by possibly $3 or more because of the added cost of travel and housing expenses.

The wages, coupled with other barriers are keeping many producers away from the program especially tobacco farmers.

“Farm labor is a huge issue for all farmers anymore in our region, but most especially for our tobacco farmers. Many of our farmers raise enough tobacco that they can’t reasonably harvest the crop with their own family members, but they do not want the expense and frustration of dealing with the H2A program,” said Tommy Yankey, University of Kentucky (UK) County Extension Agent for Agriculture and Natural Resources.

“However the labor shortage is not going away. Farmers have different opinions on the H2A program and even with Hispanic workers in general. Many cannot speak Spanish and have a difficult time communicating with workers. Some feel the headaches are not worth it and are simply scaling back to a level they can manage with their family and the help of neighbors.”

Hornback, who has farmed all his life, said despite the cost and inconvenience, it is the Hispanic workforce that has kept his farm in operation. “I started using Hispanic labor 15 years ago. With the increase in my acreage of tobacco, I had to know the labor was there,” he said. “The base group of my employees has been with me for 13 years.”

One of those is Carlos Valdez from Guatemala who came to this country 15 years ago and applied for asylum.

While here, he had kept all his records and paperwork up to date, Hornback said; but it still took 13 years to get his first interview to become a permanent resident because of the backlog.

“I got discouraged not knowing whether we were making any progress,” said Valdez. “And having a wife and two children here made it worse.”

Another of Hornback’s labor force, Gabriel Cardenez is a documented H2A worker, and he worries new immigration laws may affect his ability to come here to work. Presently he stays about nine months out of the year. “I can see in the future that I might not get to come up here anymore,” said Cardenez.

Hornback said a typical wage in Mexico for these workers would be around $10 a day. “They come up here to make a better living and life for their families. This H2A program would work a lot better if it wasn’t so complicated.”

Under current immigration law, the United States admits approximately 900,000 legal immigrants every year, but annual immigration is estimated to increase by another 300,000 people who illegally cross U.S. borders.

The Immigration and Naturalization Service estimates that about 5 million illegal immigrants currently reside in the United States. New legislation may take aim at remedying that situation but could alter the current program for documented workers. Hornback has worked for the last 12 years to make immigration laws beneficial to agriculture and says the new bill could be anything but that.

“Granted, agriculture needs a fix, but the one point I would like to make about the immigration bill being debated and with the tightening of the border which I think is the proper thing to do, the labor force is not going to be there for us. In this bill, if it passes, and we grant some type of adjusted status to all of the people that are undocumented and it requires them to work in agriculture for two or three years, when that period of time is gone, providing the borders have been secured, the labor force in agriculture will be worse than what it is right now.”