Area farmers ask for H-2A reform

A Democratic-controlled House passed a bill on March 18 that would create a pathway for undocumented farmworkers to attain legal status. Lawmakers claim it would stabilize the agricultural sector and ensure a sufficient labor supply for an industry that frequently struggles with shortages.

But several Delmarva farmers and industry representatives said last week they’re instead hoping for reforms to the byzantine migrant workforce program that supplies many operations here.

Labor “is a huge problem,” Delaware Farm Bureau President Richard Wilkins said. “The lack of available labor is driving farms to become larger and larger in order to justify greater mechanization. It’s also driving medium-sized farms out of the industry or they basically downsize.”

While anywhere from half to three-quarters of the nation’s crop hands are undocumented, most of those workers operate in the West or the South. (A report last year by the American Immigration Council showed that agriculture was not one of the top five industries attracting immigrants in Maryland.) Delmarva farm operations requiring seasonal labor often use the federal H-2A program, which allows farms to hire foreign nationals to fill temporary jobs.

But farmers have complained for years about the program’s rising cost, the complicated application process and the costly management of those workers once they arrive. Several said the ever-rising federal wage rate for temporary migrant farmworkers is an ongoing problem. This year in the Delmarva region that wage is $14.05 per hour, up nearly a dollar since 2019.

“It probably goes up 50 cents to a dollar a year,” said a Delaware farmer who uses dozens of H-2A workers and asked to remain anonymous so he could speak freely about the program.

He said his migrant workers arrive around late March and leave in early October after harvest. While they’re here, he pays for their housing and transportation and for pricey consultants who help him navigate the program’s massive list of requirements and regulations. He said he pays an H-2A consultant more than $40,000 a year to stay compliant.

“You’re dealing with the federal government with tons of regulation and red tape, and I mean tons,” he said. “If you make one mistake, it could mean you don’t pay your labor on time.”

The program’s wage rate is determined each year through farmworker surveys, which often lump skilled and unskilled workers together or create job categories that fail to distinguish between positions with differing salaries, such as a combine operator and a truck driver, farmers said. This leads to elevated wages.

“The government does not do a good job vetting that data and screening that data,” said Tom Bortnyk, vice president and general counsel at másLabor, an H-2A consultancy based in Charlottesville, Va. “The government does not do a good enough job of being granular with it.”

Although the H-2A program was created to supply farms with foreign labor, it’s also designed to encourage farm operations to first hire U.S. citizens. The wage minimums theoretically do that, but farmers said there is little interest among Americans despite a competitive wage.

“Basically, the American citizen isn’t hungry enough to do that kind of work,” the Delaware farmer said.

Bortnyk’s firm, to an extent, benefits from the H-2A program’s complexity, but even he said the program could be simplified. Some of the application process is paper-based. It can be redundant, with similar applications completed for departments that could make it easier for farmers if they worked together. The process to become a labor contractor, which secures H-2A workers for farms, is “amazingly antiquated”, Bortnyk said, and applicants must contend with a six-week backlog thanks to a process designed in the 1980s and largely unchanged since.

The federal government should also change its overtime rules, he said. Although agriculture is exempt from fair-labor standards that require overtime in other industries, the rules can create unnecessary — and costly — complications. For instance, if farmworkers are packing apples grown by their orchard, the farm’s owner does not have to pay overtime, but the moment they begin packing apples grown by another orchard, the owner must. The regulations, Bortnyk said, lack nuance.

“I do think there’s a lot of excitement and enthusiasm for H-2A reform, but the devil’s in the details,” he said.

The Farm Workforce Modernization Act targets some of those reforms. It seeks to streamline the application process by digitizing it, allowing federal agencies to work together. It also addresses the wage issue by disaggregating various agricultural occupations that may have been lumped together in surveys. It would also open the program to year-round industries, including nurseries and dairies.

The bill would freeze wages for one year and cap wage fluctuations for most of the country at 3.25 percent for the next nine years. Money would also be set aside to rehabilitate aging farmworker housing and build new housing through loans and grants.

The bill, which rests in the Senate where it is thought to face an uphill battle, has the backing of more 300 agricultural groups. The American Farm Bureau Federation, however, has declined to support it due to disagreements over several provisions, including wage rate calculations. Still, other major groups, including the National Milk Producers Federation, are pushing the Senate to pass it.

“There is a lot of streamlining that could be done in the H-2A program,” Bortnyk said. “No doubt about it.”