The administration is quietly relaxing visa regulations because farmworkers are in critically short supply.
WASHINGTON -- With a nationwide farmworker shortage threatening to leave unharvested fruits and vegetables rotting in fields, the Bush administration has begun quietly rewriting federal regulations to eliminate barriers that restrict how foreign laborers can legally be brought into the country.
The effort, urgently underway at the departments of Homeland Security, State and Labor, is meant to rescue farm owners caught in a vise between a complex process to hire legal guest workers and stepped-up enforcement that has reduced the number of illegal planters, pickers and middle managers crossing the border.
"It is important for the farm sector to have access to labor to stay competitive," said White House spokesman Scott Stanzel. "As the southern border has tightened, some producers have a more difficult time finding a workforce, and that is a factor of what is going on today."
The push to speedily rewrite the regulations is also the Bush administration's attempt to step into a breach left when Congress did not pass an immigration overhaul in June that might have helped American farms. Almost three-quarters of farmworkers are thought to be illegal immigrants.
On all sides of the farm industry, the administration's behind-the-scenes initiative to revamp H-2A farmworker visas is fraught with anxiety. Advocates for immigrants fear the changes will come at the expense of worker protections because the administration has received and is reportedly acting on extensive input from farm lobbyists. And farmers in areas such as the San Joaquin Valley, which is experiencing a 20% labor shortfall, worry the administration's changes will not happen soon enough for the 2008 growing season.
"It's like a ticking time bomb that's going to go off," said Luawanna Hallstrom, chief operating officer of Harry Singh & Sons, a third-generation family farm in Oceanside that grows tomatoes. "I'm looking at my fellow farmers and saying, 'Oh my God, what's going on?' "
Officials at the three federal agencies are scrutinizing the regulations to see whether they can adjust the farmworker program, an unwieldy system used by less than 2% of American farms to bring in foreign workers. They are considering a series of changes, including lengthening the time workers can stay, expanding the types of work they can do, simplifying how their applications are processed, and redefining terms such as "temporary."
Administration sources said they were moving aggressively. They declined to discuss details of the proposals.
The agencies are also working on possible changes to a separate visa program, H-2B, which brings in seasonal workers for resorts, clam-shucking operations and horse stables, among other businesses.
The administration has pursued the project discreetly. The issue of immigration has generated friction between President Bush and the conservative wing of the Republican Party, which has strongly opposed many of the initiatives that Bush has pursued.
The changes to the H-2A visa program comprise one of more than two dozen initiatives the administration announced in August. Most of the initiatives dealt with increased enforcement, the most prominent being a measure that would force employers to either fire workers for whom they've received "no match" notification (indicating their W-2 data don't match Social Security Administration records) or face punitive action from the Department of Homeland Security. When Homeland Security Secretary Michael Chertoff announced the enforcement push, he also acknowledged the problems that agriculture reported.
"Even putting aside no-match letters, just our increased work at the border was actually causing a drop in the number of workers coming across," Chertoff said.
David James, an assistant secretary of Labor, said Bush asked his department, which has jurisdiction over most H-2A rules, to review the entire program. The agency "is now in the process of identifying ways the program can be improved to provide farmers with an orderly and timely flow of legal workers while protecting the rights of both U.S. workers and foreign temporary workers," James said.
The current program, managed by all three agencies, is famously dysfunctional.
Farmers have to apply for workers about a month in advance, but the agencies often fail to coordinate their response in time for the harvest, which farmers can't always predict. At Hallstrom's farm, where tidy rows of tomato plants run almost to the ocean's edge, half of the 1,000 workers are in the H-2A program. (Nationally, about 60,000 H-2A applications a year are usually filed, compared with more than 3 million farm jobs to be filled. There is no cap on the number of H-2A workers allowed into the U.S.)
She remembers submitting an emergency request for H-2A workers one year and getting the visas 60 days later. She said the laborers spent two weeks pulling rotten fruit off the vines, and the farm lost $2.5 million. "Devastating," Hallstrom said.
Growers also complain about paying for workers' housing, transportation, visas and other fees. Harry Yates, a North Carolina Christmas-tree grower, estimates that his labor costs for H-2A workers are $14 an hour, compared with a competitor whose illegal laborers cost about $7.50 an hour. Like other farmers, Yates said using the H-2A program was an invitation to lawsuits from worker advocates and frequent government investigations.
"I understand why so many growers are afraid to use this program. It is too expensive, too complicated, too slow and too likely to land you in court," Yates said.
Some advocates for workers fiercely dispute this. They say farmers just want to keep wages low.
"The employers want to be free of government oversight, legal-services representation for the guest workers, and other efforts to enforce the modest H-2A worker protections," said Bruce Goldstein, executive director of the advocacy group Farmworker Justice, which is affiliated with the nonprofit National Council of La Raza.
Industry lobbyists have sent the Bush administration a set of detailed suggestions for overhauling the H-2A program through administrative changes, which could take weeks to put in place, and through changes in the regulations, a process that takes months.
Some of the suggestions under consideration include changing the procedures farmers must use to try to hire U.S. citizens first. Currently farmers have to advertise the jobs, then submit applications to Labor and Homeland Security to bring in foreign workers. Growers would prefer to move to a system in which they pledged that they had done all they could to recruit U.S. workers, but no longer had to submit an application to Labor.
Other changes under consideration would simplify the detailed H-2A housing requirements, extend the definition of "temporary" beyond 10 months, and expand the definition of "agricultural" workers to include such industries as meatpacking and poultry processing.
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