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Republicans and Democrats are separately working on solutions to stabilize the mostly undocumented agricultural workforce, fearing what an enforcement-only approach, as touted by the Trump administration, would bring.
Republicans are pushing for a replacement of the H-2A temporary visa program, which provides access to agricultural guest workers, while Democrats are seeking permanent legal status for those workers.
Rep. Bob Goodlatte, R-Va., is close to reintroducing an updated version of a 2013 bill that sought to transform the H-2A visa program into a new guest worker program that would streamline the visa process for employers and allow workers—including undocumented workers—to stay in the country for up to three years in at-will employment.
[SHRM members-only toolkit: Obtaining U.S. Employment Visas]
Employers have long criticized the H-2A program for being ineffective and burdensome. "It is a costly, time-consuming and flawed program," Goodlatte said. "Each year, employers have to comply with a lengthy labor certification process that is slow, bureaucratic and frustrating. They must expend a great deal of time and money each season in order to prove to the federal government what nearly everybody already knows to be the case—legal, dependable, domestic farm labor is very hard to find."
The applications associated with the program are "so extensive and complex, with different forms and filing requirements with four different agencies, that many employers have to hire experts to help them just fill out the paperwork," said Jon Wyss, government affairs director for Gebbers Farms, a family-run business headquartered in Brewster, Wash. Gebbers is one of the largest producers of apples and cherries in the U.S., and employs more than 2,500 people, including more than 2,000 H-2A employees at harvest times.
Sarah Frey, the CEO of Frey Farms, headquartered in Keenes, Ill., agreed, but pointed out that "however slow, inefficient and riddled with bureaucratic inefficiencies, the H-2A program is the only hiring solution that we have."
Best known for growing pumpkins and watermelons in several states, Frey Farms has been using the program for 15 years. "Our farms continue to face hiring challenges," she said. "As more Americans move to suburban and urban centers, we struggle to fill the number of seasonal jobs as our rural population diminishes. Like most farms, ours are in rural communities, far away from the larger labor pools needed to fill the jobs that are necessary for harvesting specialty crops."
Use of the H-2A program has increased significantly in recent years, from 55,384 visas issued in fiscal year 2011 to 134,368 in fiscal year 2016. There is no cap on the visas.
Goodlatte's legislation would create a program that is market-driven and adaptable, allowing workers to be employed at will, making it easier for them to move freely among employers to meet demand. It would also adopt an attestation-based petition process for employers rather than having them submit to a labor certification process.
The bill would also eliminate current H-2A program requirements stating that:
The current program requires employers to pay an artificially inflated wage rate, Goodlatte said. "These growers must pay an average of over $13 an hour in some states and still cannot find enough Americans willing to take the jobs. Further, they must provide free housing and daily transportation. H-2A farms almost always find themselves at a competitive disadvantage in the marketplace."
Wyss believes the cost of entry into the H-2A program is too high. "This keeps many farms, especially smaller growers, out of the program and trapped in a difficult cycle of trying to locate and hire scarce labor."
In the case of Gebbers Farms, workers are paid the state's mandated adverse effective wage rate, the minimum wage that the U.S. Department of Labor has determined must be offered and paid by agricultural employers to H-2A visa workers, which is currently $13.38 per hour, while the Washington state minimum wage is $11 per hour.
Democrats object to Goodlatte's proposal, which would require undocumented farmworkers—some of whom have been in the U.S. for decades—to return to their home countries as part of a legal guest worker program.
Luis Gutierrez, D-Ill., introduced a bill that would provide undocumented agricultural workers a path to permanent residency and eventually citizenship. The legislation, supported by the United Farm Workers, would legalize guest workers who have worked on U.S. farms for at least 100 days over two years. A three- to five-year path to citizenship would be available to those who continue to work in agriculture.
Republicans have countered that providing legal status to undocumented farmworkers would not stabilize the agriculture labor market. "In 1986, unlawful immigrant farmworkers were granted amnesty, but they then left for jobs in the city, denying growers the workforce that they needed," Goodlatte said. "[The Gutierrez bill] would have the same effect."
But Goodlatte's proposal would also legalize currently undocumented farmworkers, if only temporarily. "We should enable the large population of illegal farmworkers to participate legally in American agriculture," he said. "Those eligible will provide a stable, legal agricultural workforce that employers can call upon when sufficient American labor cannot be found."
The Agriculture Workforce Coalition, an association of farm employers across the country, supports undocumented workers being able to adjust their immigration status so they can legally work in agriculture.
"We believe those who are working in agriculture without proper documentation should be able to make their presence known and join the H-2A program," Frey said. "When their seasonal harvest work is finished, these workers would return to their home country as the current H-2A program requires and transportation would be provided for by their American employer. These workers would be allowed to return under the lawful rules of the H-2A program, and the American farmer could operate without the stress and anxiety of wondering where their next group of employees will come from."
There is bipartisan agreement that an enforcement-only approach to undocumented workers—such as mandating E-Verify without making way for a legal immigrant workforce—will be devastating to the industry.
In May, President Donald Trump requested $15 million for the Department of Homeland Security to begin implementation of a mandatory electronic employment eligibility system. Up to 70 percent to 80 percent of U.S. farmworkers are believed to lack legal status, according to various estimates.
"We strongly oppose a mandatory E-Verify on employers until a satisfactory immigration path for agriculture is realized," said California Farm Bureau president Paul Wenger.
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