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H-2A Visas: Open in Theory, Closed in Practice

An Immigrant Worker in Idaho

“Our immigration problem’s not going away.” That was the title of my article for Real Clear Policy this weekend. While the Pew Hispanic Center’s conclusion that “the net migration flow from Mexico to the United States has stopped” has some declaring immigration a “non-existent problem,” the reality is that America's immigration system is as broken as ever. Running near-double digit unemployment in a weak economy may drive a few undocumented workers out of the country, but it is not a solution to America’s immigration problem. The only solution is an immigration system that allows immigrants to come to the U.S.

One response to my article was that there is already a legal way for workers to come -- the H-2A visa program. But even Labor Department officials recognize that this program has failed. As President Bush’s U.S. Secretary of Labor Elaine Chao said in 2008:

There are 1.2 million hired agricultural workers in the United States today. Estimates show that between 600,000 and 800,000 are undocumented. There simply aren't enough U.S. workers to fill the hundreds of thousands of agricultural job openings in this country. Farmers can hire temporary foreign workers to harvest their crops through the H-2A visa program... Yet despite the fact that this program is uncapped, agricultural employers hired only about 75,000 H-2A workers in 2007… Farmers report that the H2A program is burdensome, duplicative and riddled with delays. And many who have tried it report such bad experiences that they stopped using it altogether.

As the brother of Idaho’s Lt. Gov. Jim Little, who is also a grain farmer, recently told The Idaho Statesman, “It seems like they take great joy in piling on minutia and things we have to do.” As Little’s daughter who raises sheep told the Statesman, “we needed four new workers from Peru. I started the paperwork in July and our workers didn’t arrive until February. It’s really hard to depend on a program that takes that long to get workers here. We had to sell most of our sheep last year and this was one of the driving factors. It was just getting too hard to manage the labor situation.”

Labor regulations like these kill jobs and economic growth, but restrictionists continue to claim that this legal process is a legitimate channel for immigrant labor. Farmers must apply for H-2A visas, then spend pointless time and money advertising the positions to Americans, interview candidates, and reject them all on “reasonable” grounds, then prove all this to the Dept. of Labor. Many times the regulations force them to hire workers who work a few days and quit. This whole process including fees adds up to thousands of dollars and as Little’s daughter pointed out, it takes so long it’s often not even worth it.

At the end of the process, the Dept. of Labor can reject the application for any number of dozen reasons. Six Senators from Idaho, Florida, Ohio, Colorado and Wyoming recently wrote to the Labor Dept. to express their concern about these problems: “In FY2006 and 2007, the DOL set a 95-percent target for issuing timely decisions on these applications; the actual complixance rate for those years were 57 percent and 56 percent, respectively. DOL has since lowered its goals substantially, setting a compliance target of just 57 percent in 2011 and 2012.” Moreover, they write that "since 2008, appeals of denied H-2A applications have grown by 800%."

Nor do the problems end once the workers arrive either. Workers’ hours, wages, and benefits are all also regulated by the Dept. of Labor (DOL). This means farmers must monitor these very closely, which equals more DOL paperwork. Employers must provide transportation to the work site, even from Peru, Mexico, or elsewhere. Once the new employees arrive, farmers must give housing, which must include meals or a kitchen, as well as transportation to work, a bank, or local stores.

Records must be maintained for all these activities and submitted to the Dept. of Labor. If any mistakes are made, it can result in major fines. “I always relate it to tax law,” labor law consultant Barlow Curran recently told The Tampa Tribune “Federal tax law is so complicated that if the IRS audits you, regardless of how careful you've been, they’ll probably find something. The same thing is true of farm labor law.”

The “legal alternative” is bad for immigrant workers as well. While undocumented workers can easily change employers and move to new jobs, these legal workers can only work for the employer that brought them into the U.S. This means that if that employer closes or fires them (a process in and of itself), they must return to their home country. This makes the legal market almost as great of a risk as the black market. Labor restrictions like these make our economy less flexible, dynamic, and productive.

Martin Luther King Jr. once argued that legal channels to change that are "open in theory but are closed or unfairly obstructed in practice" aren't really open. In the same way, legal channels to entry that are open in theory, but closed or unfairly obstructed in practice aren't really open either. Congress must recognize that current policy is failing this country's farmers and reform the system before the U.S. loses its agricultural heart.