Debbie Daughtry, a vegetable farmer in Engelhard, N.C. stands behind the stack of paperwork she maintains for the H-2A visa program. (Gabriel Silverman/Medill News Service)
ENGELHARD, N.C. – Few people in Engelhard, N.C., understand the effect of government bureaucracy better than vegetable farmer Debbie Daughtry. Nearly two feet of regulatory paperwork is stacked on her desk.
Since participating in the H-2A visa program that provides farmers with legal, temporary workers from foreign countries – typically Mexico – Daughtry has become a full-time paper pusher, organizing applications, certifications, time sheets and more.
Because her farm follows the law, Daughtry believes she’s at a competitive disadvantage to the majority of other farms who decide to hire undocumented labor, usually at a fraction of the cost.
Debbie and her husband, Wilson, started using H-2A labor five years ago because even after receiving all the proper documentation from their seasonal labor force, including Social Security numbers, something didn’t feel right.
“In the back of your mind you can’t help but believe we probably don’t have a 100 percent legal workforce,” Wilson Daughtry said.
With few Americans willing to take on the physically demanding work at the wages offered, farmers are faced with a choice: join the expensive, bureaucratic program or hire cheaper undocumented labor and take their chances with U.S. Immigration and Customs Enforcement.
“We were afraid that as we go to harvest the crop…here comes the enforcement people and there goes our workers,” Wilson Daughtry added. “We borrow a tremendous amount of operating money from our local bank. Up to the point of harvesting, it’s all out there.”
What is the risk of getting caught?
Under President Barack Obama’s administration, U.S. Immigration and Customs Enforcement has changed tactics, shifting its focal point from the undocumented worker to the employer knowingly hiring illegal labor.
This approach has seemingly paid off with the agency having its most prolific year – removing 396,906 illegal aliens, the majority having been convicted of felonies or misdemeanors.
But in a memo to all employees earlier this year, ICE Director John Morton confronted the reality of balancing the agency’s monumental task with its finite resources. Morton wrote that ICE “only has resources to remove approximately 400,000 aliens per year, less than 4 percent of the estimated illegal alien population in the United States.”
With such a limitation, Morton said, ICE is focusing its effort on critical infrastructure, public safety and border security. In other words, agriculture isn’t explicitly a priority for ICE, although it may overlap with investigations.
“And they are right. How much threat is some cucumber pickers?” a vegetable farmer in Virginia rhetorically asked in response to learning about ICE’s new approach.
But farmers getting caught hiring illegal workers is “a very real possibility,” according to Bob Andrews, the ICE assistant special agent in charge of coordinating worksite enforcements for Georgia and the Carolinas. “I can point to numerous cases where we’ve sent people to jail for significant lengths of time for knowingly hiring undocumented aliens. To me it’s a significant risk.”
ICE has conducted investigations involving agricultural-related businesses, added Del Richburg, assistant special agent in charge for North Carolina. “But it’s not necessarily what we’d consider critical infrastructure sector.”
Richburg was not able to quantify the number of cases involving N.C. agriculture-related businesses because ICE does not break down data by industry and signs nondisclosure agreements with those civilly punished, but he characterized the number as “a handful” in the last year.
Lee Wicker of the North Carolina Growers Association, on the other hand, believed that a “handful” was the amount of actions taken against farms since he started running his family’s farm 23 years ago.
The raw numbers:
Estimated number of undocumented agricultural workers in North Carolina
70,000 to 100,000 (Farm Labor Organizing Committee, NCGA)
Number of ICE alien removals from the Carolinas and Georgia for FY2011
22,963 (ICE)
Number of I-9 audits NATIONWIDE in FY2010
2,196 (ICE)
Number of worksite cases initiated NATIONWIDE in FY2010
2,746 (ICE)
Number of convictions of employers NATIONWIDE in FY2010
119 (ICE)
Number of farms in North Carolina in 2010
52,400 (USDA)
-By Gabriel Silverman
Medill News Service
Recent events in Alabama, Georgia and Arizona highlighted this gamble when workers fled in fear of stricter immigration enforcement legislation.
There has been an uptick in H-2A use in the last five years, but the majority of foreign farm labor remains illegal.
Does being legal cost farmers?
“Honestly, we’re mad as hell about the situation,” Wilson Daughtry said. “We’ve tried to do the right thing and because of that we got ourselves kicked in the teeth and it’s cost us a bunch of money. And at some point you’ve got to ask if it’s worth it or not.”
It’s not just the time required to navigate the paperwork. Farmers who use H-2A labor must pay to advertise the positions first to American workers. U.S. citizens have first shot at the jobs but several farmers say domestic hires rarely make it through the season, let alone the first day, because of the difficulty of the work.
In addition, H-2A employers must provide free housing, pay for transportation to and from the worker’s country, cover all visa costs, and guarantee a wage more than $2 higher than federal minimum wage.
Before a single vegetable is picked, the Daughtrys estimate they must pay upwards of $1,200 per employee. With 58 H-2A employees that means nearly an additional $70,000 each season _ not including the higher wages, which they would not be obligated to pay if they hired outside the program.
A legal decoy
Ironically, those who choose to use the H-2A program make themselves more available to public scrutiny than those who choose to skirt the law, according to Lee Wicker, deputy director of the North Carolina Growers Association. The NCGA was established to help its members more easily navigate the H-2A program.
All migrant housing is legally required to be inspected prior to occupancy and certified for a specific number of beds, but Wicker said non-H-2A housing often goes uninspected.
In 2011, the North Carolina Department of Labor certified 16,942 beds, of which 8,844 were H-2A. But with an estimated 70,000 to 100,000 undocumented agriculture workers in the state, Wicker believes that H-2A is disproportionately scrutinized.
“I’ve seen those numbers,” said Regina Cullen, NCDOL’s Agricultural Safety and Health bureau chief. “My opinion is, if they give us a referral, if somebody says, ‘You need to go here (because) there’s unregistered housing,’ we will do it. We can’t do it if we don’t know about it … We do try to inspect all of them impartially, in other words, we don’t sort inspection lists by H-2A.”
What if everyone played by the rules
Even if the government found ways to compel more farmers to use the H-2A program, it would have to prepare for a surge in applications, according to Carol House, a retired U.S. Department of Agriculture statistician who recently led a survey on farmer satisfaction.
In 2010, food producers nationwide lost $320 million as a result of slow processing of H-2A applications, House testified at a congressional committee hearing in September.
House noted, “If the H-2A program expands significantly in the future…without fixing the problems that led to these losses, one could speculate that these losses would climb to the billions of dollars.”
“What incentive do we have to do the right thing?”
With its greater exposure to government regulation, added cost and more bureaucracy, the program needs reform, said the Daughtrys, who are recognized by the state as Gold Star Growers for going above and beyond housing standards.
Otherwise, they warned, farmers will resort to other options.
“What incentive do we have to do the right thing?” Debbie asked. “Why not go back to illegal workers and if you catch us and penalize us, then oh well.”
Wilson on the other hand, sees a shift in operations. “I’m thinking about quitting altogether,” he said. Instead of growing the likes of squash, sweet corn and cucumbers, he would switch to all grain crops, which would allow him to replace people with a tractor.