As heated conversations about U.S. immigration focus on migrants arriving at the U.S.-Mexico border, a quiet scenario plays out on farms across the country—thousands of undocumented workers tending and picking the crops put food on American tables and fill cargo ships that supply the world.
America’s reliance on migrant agricultural workers is a secret hiding in plain sight.
In New York’s Hudson Valley, a historic apple farm utilizes a legal process for hiring migrant workers—the H-2A Temporary Agricultural Workers program. It enables Minard’s Family Farm to legally hire migrants on a seasonal basis, and includes protections for both migrant and domestic workers that can result in fines if violations occur.
Jason Minard, whose family has run the farm since 1906, said he believes in the program despite its up-front costs and the risk of penalties.
“I don’t look down on the program, I look at it as an asset,” Minard told Newsweek. “It’s a cost of doing business. It’s an asset because of the bottom-line reality: Without these H-2A workers, these apples would not get picked.”
A bill to reform the H-2A program, H.R. 1603, called the Farm Workforce Modernization Act of 2021, passed the House on March 18. It includes a path to citizenship for H-2A workers. Until or unless it is approved by both houses of Congress, agricultural employers are left to decide how best to employ workers for physically-demanding work that typically does not appeal to U.S. workers.
According to a 2018 report by the U.S. Department of Labor, 49% of the U.S. agricultural workforce is undocumented —a significant statistic for a country that along with China and India ranks among the top three agricultural producers in the world.
In 2019, U.S. agriculture contributed about $136.1 billion to the country’s gross domestic product (GDP). Agriculture alone makes up about 0.6 % of the country’s GDP, but that number rises to about 5.2% when combined with related food industries, according to a 2019 U.S. Department of Agriculture (USDA) Economic Research Service report.
Agriculture and related food industries are also credited with providing nearly 11% of the country’s jobs, according to the USDA’s report, an estimated 2.6 million of which involve working directly on American farms.
Minard told Newsweek he realizes there are employers who don’t take the same legal steps he does, and said that the complex legal process required, coupled with potential fines employers face for contract violations, may provide an explanation.
Fines for violations can range from $1,700 to $6,000. Fines for layoffs and improperly rejecting U.S. workers can reach $17,000. Violations of housing and transportation agreements can be as high as $59,000. The fines are based on individual workers, and are multiplied by the total number of workers whose contractual rights are deemed to have been violated.
These fees may deter some farms from getting involved with the program, especially when, by comparison, fines for hiring undocumented workers range from just $600 to about $4,000 for first-time offenders.
Muzaffar Chishti, the director of the Migration Policy Institute at New York University School of Law, described the penalties as a “slap on the wrist.”
“Hiring unauthorized people has become part of the business model for a lot of employers,” Chishti told Newsweek. “The consequences are so minimal that it is worth taking the risk.”
From the migrant workers’ point of view, U.S. agricultural employment serves as what former President Donald Trump‘s Ambassador to Mexico Christopher Landau described as a “pull factor.” Migrants from Central America comprise a large percentage of those traveling to the U.S. in the hope of starting a new life, and while factors like violence at home and climate-driven weather events can serve as a “push” to seek refuge elsewhere, job opportunities also draw them to the U.S.
Landau told Newsweek he believes the U.S. should address some of those pull factors before trying to change the push factors in other countries, which he said would likely require a “multi-generational effort.”
“I think, ultimately, the United States is making a terrible mistake by thinking that the answer for our country lies in trying to fix other countries,” he told Newsweek. “We don’t have a great track record in terms of nation-building. It seems to me the answer is much closer to home. I don’t see how we can’t get our own employers to stop hiring people illegally.”
The H-2A program employers like Minard use today has a history dating back to the Immigration and Nationality Act of 1952, which created the H-2 temporary visa program for foreign workers, and was refined in the Immigration Reform and Control Act of 1986, which created the H-2A and H-2B programs for agricultural and nonagricultural workers, respectively.
Before the H-2A program existed, the Bracero program was used widely among agricultural employers between the 1940s and 1960s. The Bracero History Archive estimates that about 4.6 million temporary worker contracts were signed during that time period. But the archive notes the program was riddled with problems rooted in employers’ unwillingness to abide by its worker protection rules, which contributed to its demise and eventual replacement with the H-2 program.
Despite the existing legal options, the avenues for attaining these visas remain tight.
The H-2A visa process requires employers to follow a three-step process dictated by U.S. Citizenship & Immigration Services (USCIS). It starts with employers filing a temporary labor certification with the U.S. Department of Labor. Then, they must file an I-129 petition to hire a “nonimmigrant worker” to USCIS. Once completed, the prospective worker then applies for the H-2A visa at a U.S. embassy before journeying to the United States.
Though the steps sound simple, each part contains multiple sub-steps, which can be time-consuming and confusing. Minard’s farm has experienced the complexity of the process firsthand.
“It’s costly, there’re a lot of regulations, a lot of record keeping,” Minard told Newsweek. “For your average farmer, it may seem like a lot.”
Because jobs requiring H-2A workers must also be offered equally to American workers, employers like Minard need to advertise the job opportunity locally, and must continue to do so until the H-2A workers complete at least half the time on their contract.
Minard says the American workers at his farm generally last only a few days. Nonetheless, he must hire eligible Americans when they apply.
Along with this regulation, Minard says a mandate requiring employers to offer paid hours during 75% of the duration of the H-2A contract, known as the “three-fourths guarantee,” presents a logistical risk. On apple farms, for example, a frost might wipe out portions of the crop, calling for increased hours one week and virtually no hours the next. Farms who hire workers through the H-2A program must be equipped to pay their workers through the duration of their contract, even if weather conditions reduce the expected revenue yield from a crop.
“I think a lot of employers say, ‘Well, what the heck, why should I bother to comply with the law, if my competitor down the road is hiring illegals and getting away with it?'” former-Ambassador Landau told Newsweek. “This is basically a way to get around a lot of the laws we put in place to protect workers in this country.”
Undocumented agricultural workers face multiple forms of exploitation. In some cases, they encounter unsafe, dirty workplace conditions. In other cases, they face high productivity expectations that may result in long days under the sun with few breaks. However, even if the conditions and schedule mirror a law-abiding U.S. workplace, there are further risks.
Employers may tell undocumented workers their wages will be less due to their lack of legal status. Workers may feel compelled to stay silent after facing harassment by their supervisor. Workers who are qualified for full-time staff positions may be contracted for freelance or temporary work, devoid of employee protections and insurance options, due to their status.
“Are (those examples) as bad an exploitation as a sweatshop worker being chained to the assembly line?” Chishti said to Newsweek. “No, but it’s exploitation made only by the status of the worker. All these things have been happening on the side while Congress has been vacillating on immigration reform.”
The Farm Worker Modernization Act could provide a key step toward change in the agricultural sector. However, Chishti said for immigration policies to realize their full potential, they must coincide with comprehensive reform. He said in order for the country to have a successful immigration system, new avenues toward legal immigration, mandatory E-Verify, and overhauls to the H-2A program must be implemented together.
One element of the proposed legislation suggests expanding and requiring use of E-Verify, which cross-references an employee’s I-9 form with records available to the U.S. Department of Homeland Security and the Social Security Administration to confirm employment eligibility. The program was created in the mid-1990s, and has evolved to enable U.S. employers—about 967,000 of whom use it—to check a worker’s employment eligibility online within seconds.
“E-Verify to me is the lynchpin of an effective immigration reform proposal,” Chishti told Newsweek.
Chishti warns that if the nation cannot implement these reforms together, both employers and immigrants will find ways around the missing components. Without a reformed H-2A program or alternate legal method for employment, people will continue to illegally cross the border in search of work.
They may bring fake documents to prove their qualification for the job, and these qualifications may be approved without a mandatory, improved employment verification system. And without a clear path toward citizenship, those workers who do make it through are likely to face exploitation and miss out on the chance to and fully participate in American society.
“What I see as our choice is: Do we want as a country to have the people who live and work here be here legally, or illegally?” Landau told Newsweek. “I don’t think that should be a hard choice.”