Guest labor rules can be tough

Alana Semuels / Los Angeles Times /

Published Apr 3, 2013 at 05:00AM

CRUMPLER, N.C. — There are millions of workers illegally present in America, and thousands of employers who illegally hire them.

But Rodolfo Benito Coy Garcia and Rusty Barr play by the rules.

Barr is an employer and Garcia his employee, one who travels from Mexico to spend 10 months of the year planting, fertilizing and harvesting Christmas trees in this tiny mountain town near the Tennessee state line.

For both, following the law has disadvantages. Barr must go through a lengthy, complicated and expensive process to hire Garcia.

He spends more than his competitors, who he says employ workers present in the country illegally. Garcia must leave behind his family for most of the year to work a job that pays little by American standards, with no chance of becoming a citizen in the country where he has spent much of his adult life.

“I miss my family, yes,” said Garcia, whose wife and two daughters live in Tamaulipas, a Mexican state that borders Texas. “But we come here to support our families and provide our kids with a better education.”

Much of the debate over immigration reform has focused on the millions of workers living in the U.S. illegally. But many say fixes must also be made to the programs that bring tens of thousands of guest workers to America every year.

Such programs were among those that led to a standoff between congressional negotiators before their spring recess. (A tentative agreement reached over the weekend covered some low-wage workers but not agricultural employees.)

Employers say that the H-2A agricultural visa program, under which Garcia is employed, is broken, and that the complicated rules and high costs push employers to hire undocumented workers. Labor advocates say that the programs create a group of second-class citizens who are brought here to do grueling and often dangerous work without protection against abuses.

Placating both sides will be a challenge.

“There’s no obviously correct answer as to how easy it should be to use this program,” said Madeleine Sumption, an analyst with the Migration Policy Institute, a Washington, D.C., think tank. “It often comes down to a negotiation between labor advocates who want more protection for foreign workers ... and the growers who are concerned that these protections cost money.”

These are not jobs generally sought by citizens. Last year, the North Carolina Growers Association, which helps farmers such as Barr fill out the H-2A paperwork, spent $98,000 on advertising for the 8,000 jobs its members were seeking to fill. Just over 250 U.S. workers applied for the jobs, but 70 never showed up, about 180 quit in the first two days, and just 10 finished the season.

“That’s the frustration; the whole program is set up to give preference to U.S. workers,” said Lee Wicker, the group’s deputy director. “But U.S. workers don’t want to do these jobs, and I don’t say I blame them.”

Although the H-2A program is the only legal way to bring foreign farmworkers to the United States, most employers don’t use it. H-2A workers fill an estimated 6 percent of U.S. farm jobs, the majority in states such as North Carolina and Georgia, where employers are hard-pressed to find anyone else willing to do the work. Undocumented workers fill most of the 1 million or more farm jobs open nationally every year; California, which hires more farmworkers than any other state, uses H-2A workers less frequently because its location close to Mexico makes it easier for employers to find workers without legal documentation.

Barr says it’s easy to understand why only a handful of employers bring in guest workers. He spends $1,000 per worker for visas, consulate fees and transportation to North Carolina. He’s required to pay for their housing, and he estimates he has spent more than $80,000 building a house on his property, plus $36,000 to buy a mobile home and $5,000 a year to rent an apartment for the 48 workers he employs during the growing season. The government makes him pay them $9.68 an hour, which is about one-third higher than the minimum wage in the state, and he spends thousands of dollars on workers’ compensation insurance.

Costs aside, the process is a headache of applications and paperwork required by the Department of Homeland Security and the Department of Labor. Barr must go through lengthy steps to make sure no American wants a job before he hires a Mexican worker. He must place ads around the state and hire any American who wants to work, even if the job has already been filled by a migrant worker. The chance of violating a rule, even by mistake, is high, he says — a neighbor had to pay a fine of $80,000 last year.

Barr says these steps are worth it because he doesn’t want to be raided by immigration officials and lose his crops. But the expense puts him at a competitive disadvantage with the other Christmas tree farms in the region, he says. Those that use workers in the U.S. illegally pay the minimum wage and don’t offer housing, insurance or transportation, he said.

For employers like him, “It’s definitely a disadvantage to be providing higher wages,” Barr said.

A coalition of farmers has proposed a more flexible alternative to H-2A. The Agricultural Worker Visa Program would allow two options for guest workers. One would give workers visas good for 11 months — one month longer than is now permitted — and would allow them to move from employer to employer, which is difficult under existing rules. In theory that would allow undocumented workers to leave abusive employers for a job elsewhere, worker advocates say.

The other option would allow an employee to work for an employer under contract for a fixed period, but would give the worker a visa term of up to a year. The visa could be renewed indefinitely as long as the worker returned to his home country for at least 30 days over a three-year period. This option would, in theory, ensure employers a more predictable supply of workers and would give workers more stability.

H-2A workers are envied by many undocumented migrants, in part because they don’t have to worry about being deported, said Jamie Mendoza, a Mexican migrant without legal permission to be in the U.S., who has lived in Jefferson, a town near Crumpler, since 2005.

Mendoza works odd jobs, including on Christmas tree farms. His family still lives in Mexico, and because he doesn’t have the proper papers, he can’t visit them unless he wants to risk a border crossing that could cost him his job in North Carolina.

“At least they can come and go every year,” he said about the H-2A workers, lingering in the small tienda in Jefferson where immigrants come to buy food from Mexico and send money home.

Garcia and other workers on Barr’s farm say they know they’re lucky. The jobs are in such demand that workers often have to pay recruiters to hire them; there have been reports of recruiters demanding hundreds of dollars in bribes. Few can afford to take trips home, and they miss their families, said Armando Rodriguez Mendoza, 36, but even if they were in Mexico, they’d be roaming the country looking for work.

“Here, in the town, there’s a lot of work,” he said. “It’s good here. You live peacefully.”

But the situation is stressful. The workers speak to their families on the phone or through Skype, but because all of them share rooms, there’s little privacy. They often live on farms in small towns, isolated from the rest of the world.

Nancy Howe, who owns the Olde Towne Barber Shop in Jefferson, says one worker cried on her shoulder because he wasn’t home to help his wife with a newborn. Once the harvest season starts, “you hardly ever see them,” she said. “They work seven days a week from the time they come to the day they leave.”

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