Out of the shadows

On April 16, the bipartisan group of senators known as the ‘gang of eight’ introduced the Border Security, Economic Opportunity and Immigration Modernization Act of 2013. At press time, the 844-page bill was slated for discussion and amendment in the Senate Judiciary Committee beginning May 9 before moving to a vote of the full Senate as early as June.

Craig J. Regelbrugge, co-chair of the Agriculture Coalition for Immigration Reform and vice president for government relations for the American Nursery & Landscape Association, has been working closely with the policymakers in Washington on the agricultural provisions.

He says the basic structure of the agriculture section of the bill has two distinct sections. The first deals with a path to citizenship for the current workforce through an earned legalization program. In the proposed bill, employees who could prove they are experienced farm workers based on completing a minimum of 100 days or 575 hours in the past two years would be able to enroll in an “Agricultural Card” program. If they continue to work in agriculture for 100 days per year over the next five years or 150 days per year for three years, they can earn the right to be able to apply for legal permanent residency. To be eligible, workers must be able to show they have paid all taxes, have not been convicted of any serious crime, and pay a $400 fine.

Estimates range from 50 to 70 percent of the industry’s hired labor force being undocumented and unauthorized to work.

“They have papers and their papers look good, but they’re not good,” Regelbrugge says. “So this is an opportunity for these people to be able to come out of the shadows and earn their way forward to legal status.”

The importance of this issue is echoed by Lin Schmale, senior director of government affairs for the Society of American Florists.

In March, Schmale helped to organize the 33rd annual SAF Congressional Action Days, in which green industry business owners descend upon the capital to speak their concerns directly to their government representatives. This year, immigration reform was the hot topic.

“Agriculture wants legal employees just like everybody else wants legal employees,” Schmale says. “The impact can be devastating for an employer that loses 70 percent of employees at peak harvest season due to an audit. Somebody comes in and says, ‘These people are not authorized to work in the U.S. and you have to fire them right this minute.’ Well, you can’t replace them right this minute.”

The issue of authorization is a thorny one, because it puts the employer in a difficult position. Employers must fill out an I-9 form for every new hire. To be hired, a potential employee must present identification to show he or she is authorized to work in the U.S. But employers don’t have any way of knowing if those papers are valid.

On the other hand, losing more than half your employees due to an audit at an inopportune time can leave growers in a bind.

Improving H-2A
The second component of the bill deals with the future worker program. If the bill passes as proposed, a new agricultural guest worker visa program would be established with the goal of providing a more stable agricultural workforce. A portable, at-will employment based visa (W-3 visa) and a contract-based visa (W-2 visa) administered by the Department of Agriculture would replace the current H-2A program. Regelbrugge says the H-2A program only provides about 4 percent of the total labor need. “Most of the industry is frustrated with it and very few actually use it at all,” he says.

The H-2A program would sunset after the new guest worker visa program is operational. The proposed replacement program aims to provide growers with a streamlined process to petition for workers while ensuring critical worker protections.

Regelbrugge says the portable visa allows for a different type of hiring relationship. Workers using the W-3 visa would have the freedom to move from one employer to the next throughout the life of the visa.

He also says the application process would be simpler than H-2A, with less interference from the Department of Labor. “The role of the labor department would be minimized or preferably eliminated,” he says. “The labor department would still have wage and hour enforcement authority, but would no longer be involved every step of the way in determining whether the employer actually needs the workers. Part of the reason the current program doesn’t work is because the labor department doesn’t want it to work.”

Do your part
The last major comprehensive immigration reform attempt was in 2007, and it failed. For this attempt to succeed, growers need to educate elected officials. Whether it’s writing a letter to your congressman or having your district representative out to your greenhouse, help them understand the economics of immigration reform.

At SAF’s Congressional Action Days, congress members would often remark that they didn’t realize this legislation would impact greenhouse growers too, Schmale says. “They tend to think about people picking strawberries, but they’re not thinking about a nursery/greenhouse situation.”

Regelbrugge says a typical ANLA member might have 25 employees on the payroll year-round and another 100 seasonal workers. But if those seasonal workers aren’t there, the 25 people’s jobs disappear. “If you can’t get the production done during the season, you can’t sustain the business,” he says.

Then consider the companies that depend upon plants (suppliers of growing media, equipment, pots), along with other related jobs. “It’s not just the jobs in agriculture that are dependent on getting these people out of the shadows and into the legal workforce,” Schmale says. “The estimate is that three to five jobs in the community that depend upon the money these agricultural workers are generating”

Regelbrugge says that leaving this work to your trade associations and professional lobbyists like himself isn’t going to cut it. “There is nobody in a better position to explain how the economics work than someone doing it for a living, somebody who can make it personal.”