This is the fourth installment in our five-part series on “The Great Farm and Food Talent Search,” a look at the workforce issues facing American agriculture. Part one of the series focused on the search for the next generation of agricultural employees, part two discussed ways companies are looking beyond just salaries to retain and recruit workers, and part three highlighted innovative ways of training the future workforce.
Hard decisions are coming for northern Ohio vegetable farmer Bob Jones Jr.
For the past 30 years, he’s used the H-2A program to hire the seasonal immigrant laborers he needs to complement the domestic employees in the 200-member workforce for his operation, known as Chef’s Garden. But he's considering not applying for H-2A workers for 2024 because of the increased costs and unreliable bureaucracy.
Due to Labor Department processing delays, Jones is still waiting for 25% of his requested H-2A workers for 2023 that were to arrive in April. And he’s out $1,000 in processing fees for the workers who won’t make it.
“We will most likely not use H-2A next year. We will cut back our acreage and change our operation because we can no longer keep pace with the costs of the program,” Jones said.
As farmers and companies in the food and ag sector struggle to find workers, many have increasingly turned to recruiting foreign workers through visa programs, including H-2A. Demand for H-2A workers, who can take seasonal jobs on crop or livestock operations, has been skyrocketing. Meanwhile, others in the sector are trying to use smaller visa programs, such as H-2B or J-1.
But Congress’ inability to advance immigration reform, combined with regulatory changes to H-2A, has created a level of uncertainty farmers say may push more U.S. ag production to foreign competitors.
“This is a crisis,” said Kristi Boswell, legal counsel for Alston & Bird, who offers legal services for clients managing the labor situation.
Kristi Boswell, Alston & Bird“There are labor shortages all across the country. It is affecting how farms operate their business, what crops they decide to grow, whether they decide to expand, whether they shut their doors, and we are seeing more consolidation as a direct result of lack of labor.
“We are also seeing some of those larger operations buying ground in Mexico and moving operations there because of labor issues or costs associated with the H-2A visa program.”
The reality is half the workforce in agriculture is working in an undocumented or falsely documented status, which Boswell said only complicates the political forces at play in finding a solution that provides a legal, reliable workforce without being handicapped by bureaucracy.
For Jones, his decision will have ripple effects throughout his entire workforce. His H-2A seasonal workforce makes up his harvesting crew, but the packaging, shipping, sales and marketing all consist of a local workforce.
Jones’ operation is a family affair, with a partnership between Bob and his brother Lee and six members of the third generation currently working on the farm, but he considers many of his workers as family. During the winter, Jones visits the Mexican villages of his workers and supports churches and schools in their communities.
“They're part of our family because many of them have been with us for 15 to 20 years,” Jones said. “The last time I went to Mexico, a third of my staff was building new homes, and I couldn’t have been happier.”
One of Jones’ workers, Mario Estrada, has been with Chef’s Garden for over 25 years and applied and received full U.S. citizenship so his family could join him in America. Citizenship requires five years of permanent residency as well as proficiency in English and passing a test. Jones helped Estrada and 15 others who work on his farm earn green card status or work toward citizenship, which can cost as much as $10,000 per person.
Estrada’s Mexican roots were on a farm, and he told Agri-Pulse he found the “American dream” in obtaining his citizenship, but his love of agriculture and positive working conditions made it an easy decision to continue to work for Jones as he transitioned out of the seasonal H-2A program.
Mario’s brother, Juan, joined the farm workforce six years ago as an H-2A worker and remains happy with what is expected of him, as well as the ability to travel back to Mexico during the offseason and earn more than the alternatives in Mexico.
Without H-2A workers, AmericanHort member Jones cannot continue to expand his business as he wants. Similar to Jones, many farmers are forced to slow expansion plans, scale back or exit agriculture because of fewer legal workers.
Zachariah Rutledge, an extension economist at Michigan State University, said half the farmers in the fruit and vegetable sector are facing labor shortages. On average, they can only find 80% of the workers they normally need.
In the 2022 Greenhouse and Nursery Labor Employment Survey, conducted with AmericanHort in collaboration with the University of California, Davis, and Michigan State University, 35% of growers utilized the H-2A program, yet half those who used it said they would employ workers for more than the maximum of 10 months if it were allowed.
Michael Marsh, president and CEO of the National Council of Agricultural Employers, said another survey done in 28 states showed that very few domestic workers will take farm jobs.
“For the 97,691 jobs that were made available, there were only 337 domestic applicants,” Marsh said. “I don’t see that trend changing.
“We hear sometimes from labor advocates, ‘Well, if you paid folks $100 an hour, you could get all the workers you need.’ That’s not true either. Maybe they show up for you 'til noon, and then they take their $400 and they go home,” Marsh said.
In fiscal year 2022, 371,000 H-2A workers were certified for work in the United States, up from 77,000 in 2011. “All of the evidence points to increased reliance upon the H-2A program moving forward,” said Rutledge.
But at what cost?
Boswell, who served as an adviser at USDA and the White House under the Trump administration, has seen a significant regulatory shift in the last four years negatively impacting farmers. The H-2A program has seen two rules finalized this year and another two proposed rulemakings on the way.
“If you’re a current H-2A user or if you’re looking to get into the H-2A program, it is getting harder and harder to simply maneuver the program,” Boswell said.
By law, H-2A pay rates are not supposed to undercut wages paid to domestic workers. To that end, DOL sets an Adverse Effect Wage Rate (AEWR) for each state every year based on a USDA survey of wages that U.S. farms pay their workers.
For 2023, the AEWR ranges from $13.67 (in Alabama, Arkansas, Georgia, Louisiana, Mississippi and South Carolina) to $18.65 in California and $20.72 for the District of Columbia.
Last year, 10 states experienced double-digit increases. In Florida, the increase was 15.5%, said Adam Lytch, north Florida regional manager for L&M Farms. On Lytch’s operation, payroll expenses increased $1.4 million over the prior year.
“When you include the costs of housing and transportation that H-2A employers are required to provide, this year’s minimum wage could account to more than $23 per worker,” he said during a Senate hearing in May where other farmers also lamented the impact of the soaring labor costs.
Rutledge said Michigan saw one of the largest increases in AEWR in 2023 at 13%, compared to average increases of 3% to 5% in previous years.
Jones said the required wage rate increases make it difficult to reward his longtime employees in a commensurate fashion. “Part of my issue is I'm not being fair to my best people,” Jones said.
Earlier this year, Sens. Thom Tillis, R-N.C., and Jon Ossoff, D-Ga., introduced the Farm Operations Support Act, legislation that would revert the AEWR to the December 2022 rate for the remainder of 2023.
Chef’s Garden markets directly to high-end restaurants, entities such as Disney, and through prescription food boxes and direct-to-consumer deliveries. For now, Jones has been able to pass on rising labor costs and remain profitable. But it continues to get harder to recoup those costs.
But Michigan-based fruit and vegetable grower Fred Leitz, who relies on wholesale markets, has a harder time passing on labor costs on the operation he runs with his three brothers.
When the Pharr International Bridge opened in 2012, Mexico’s fruit and vegetable production started going up dramatically, while U.S. production went down, said Leitz. “Mexico is producing the same crops at the same time of year going into the same markets that I am. The only difference is they are one to two days farther away from the markets than I am, but their labor rates are very low.”
Leitz estimates his cost of production for labor is over $5 a box during the span of starting in the greenhouse and finishing the crop by cleaning up the fields, compared to what Leitz has heard is Mexico’s cost of just 60 cents a box.
When wholesale buyers want to push the price they’re willing to pay down to $10/box, it’s hard for him to stay profitable, he said.
At peak workforce, Leitz employs about 230 people, with about 190 from the H-2A program, to go with another 20 to 25 domestic migrant workers and 15 seasonal workers from the local area. Leitz said labor costs now account for about 45% of his expenses for the year. “That’s just way out of line,” he said.
Rutledge estimates farm wages in Mexico are about 15% of what they are here in the U.S. “If you have farmworkers making $15-$20 an hour here in the U.S., they're making about $2, maybe a little more, in Mexico,” he said.
The Economic Research Institute estimates the average Mexican crop worker makes about $4.20 an hour. That is higher than Rutledge’s estimate but still well below U.S. wages.
H-2A critics say regulations create more roadblocks
Farmers also are concerned about a new Biden administration rule that requires employers pay at the highest job level code regardless of the total time spent on that particular task. Boswell said one of her clients — U.S. Custom Harvesters Inc. — will have to pay workers who only drive trucks a small percentage of the time on a combine crew at a rate nearly double that of the combine driver.
“In small crews, this drives up wages for the entire workforce to a level that's not sustainable from a business perspective,” Boswell said.
Another change implemented by the administration to the H-2A program limits H-2A employees to working for a single employer for no more than 34 hours a week, if the grower has filed as a joint employer. DOL justifies this provision by stating that any grower who can provide even a single week of full-time work — defined as 35 hours in this program — should file as a sole employer.
Kate Tynan, senior vice president of the Northwest Horticultural Council, said the change makes it more difficult for small growers to use the program, because they need to jointly apply for H-2A workers to share the associated costs.
“As labor shortages continue to become more acute, more and more growers will continue to face the choice of using the H-2A program, if they are financially able or selling their multi-generation family farm,” she said.
Farms simply lack options for legal workers other than H-2A, said James O’Neill, director of legislative affairs for the American Business Immigration Coalition.
Charts: RaboResearchUSDA’s Ag Labor Survey estimates that 60% of farmworkers in the U.S. are undocumented, and because the dairy industry is locked out of the H-2A program, potentially 85% of that workforce is undocumented. Of the estimated 2.2 million agricultural workers nationwide, 1.1 million are likely undocumented.
“Any reasonable solution to the workforce shortage has to include stabilizing the workers that we already have, and creating new pathways for workers to be able to come and do the work that we desperately need them here to do,” O’Neill said.
David Magaña, a senior analyst for Rabobank, said demographic and economic changes in Mexico are limiting the number of Mexicans available for U.S. work. During the 2008-09 recession until pre-COVID, there was a net migration of people going back to Mexico from the U.S. Meanwhile, Mexicans also are having smaller families.
“A few decades ago, most of these workers came in from central Mexico, and they were able and willing to work in agriculture,” Magaña said. But as recently as 20 years ago, more workers came from southern Mexico and in the last five years from Central America.
“Looking at the numbers, I can tell you that’s not the same profile of migrant workers as it was in the '80s or '90s. The majority used to be single men going to work temporarily with some ag experience. Now it is unaccompanied children or families escaping from violence who don’t have the experience of work on a farm, and many of them don’t want to,” Magaña said.
To expand the potential pool of H-2A workers, USDA announced in June 2022 it would be using $65 million in American Rescue Plan funding to help recruit and identify H-2A workers in the Central American countries of El Salvador, Honduras and Nicaragua.
USDA intended to launch the competitive pilot program early this year ahead of the growing season, but as of August still had no additional details to offer on the program.
Boswell said, “There are safeguards in place to ensure that there isn't that flood of foreign workers into the market that hurts the domestic labor force. No one wants to hurt the domestic labor force. And in fact, farmers would love to be able to hire U.S. workers if they were available.
“But that isn't the reality, and that's why it has grown exponentially in the 12 years that I've been doing this,” she said. “The H-2A program went from 77,000 certifications to 360,000 certifications.”
While farmers across the country say they have no choice but to apply for H-2A workers, some domestic workers still see the visa program as unfair competition.
Esther Ruiz has been working in agriculture in Arizona for the past 15 years as a domestic farmworker, primarily in lettuce and broccoli fields. This year, a month into what she assumed would be six months of work, she was laid off as younger, male H-2A workers arrived at the farm.
“We end up unjustly unemployed because the H-2As get to take the work that we as local residents had already started, because companies fire us to put in the H-2A contracted workers,” Ruiz told Agri-Pulse.
This creates difficulty for Ruiz, who became a U.S. citizen through marriage, to pay for living costs and food; H-2A workers have free housing and transportation through the program.
“Above all, this is age discrimination, because 98% of the H-2A workers are very young men,” she added.
H-2B and J-1 visas offer options for some food, ag employers
Some farmers and other sectors of the industry are looking to other visa programs for help.
The H-2B program, which unlike H-2A has a cap on the number of visas that can be issued annually, can be used by landscaping companies — they accounted for 37% of the total H-2B positions last year — and other employers for nonfarm work.
In FY22, DOL approved 211,254 requests for H-2B positions, but the program is capped at 66,000 visas, limiting the ability to fulfill all the requests. Congress has given DOL some ability through appropriations language to allow returning worker exemptions resulting in visas issued slightly higher than the cap limit, but Boswell said Congress should increase the cap level.
This past year, Alan Jones, president at Maryland-based Manor View Farm, hired 14 H-2A and 12 H-2B workers to manage the labor needs of its nursery tree farm and landscaping distribution plant center.
“Due to the H-2B visa cap and lottery allocation system, we've had a couple of years when we didn't receive any visas and other years when workers showed up late,” he said.
“If landscapers don't get enough help and can't run their businesses fully, then they're not buying as many trees and shrubs; that's affecting the nursery industry and the greenhouse industry,” Jones said.
Sara Duckwall, project and communications director at Duckwall Fruit, has never successfully brought H-2B workers to her fruit packing operation in Oregon. After paperwork delays forced them to miss out on securing workers in 2022, Duckwall Fruit sought assistance from a senator’s office in hope of getting approval for 20 H-2B workers to begin Oct. 1.
“The DOL turnaround time with a perishable product is untenable. The cap is very hard to navigate,” Duckwall said.
Another option is the uncapped J-1 program, which allows foreign students to work in the U.S. for up to one year. The training and education component makes the J-1 visa attractive but provides only a small labor pool to meet unique needs in the ag sector, said North Dakota farmer Clair Hauge, who uses J-1 visas.
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Hauge, who farms 7,000 acres and operates a cow-calf herd and feedlot with his brother Jamie, is 85 miles from the nearest city for shopping or parts, making it a challenge to keep and recruit workers in his rural part of southwest North Dakota.
“No doubt without foreign labor, we wouldn't be able to do what we do,” he said.
Hauge uses H-2A and J-1 visas but prefers the J-1 because of the flexibility and simplicity to apply. He’s hosted students from all over the world who have learned the many aspects of their diversified farm.
Another program that can be used to bring in professionals from Mexico and Canada is the TN program. Agronomists, plant and animal breeders, animal and soil scientists and veterinarians are among the workers who can get TN visas.
TNs can be requested at any time during the year, unlike H-2A or H-2B that have rigid windows for applying and certifying the jobs. TN visa holders can also bring their families, pay local taxes and qualify for health insurance and other social benefits with their employer.
Victor Ochoa, director of operations at Swineworks, which helps swine operations recruit workers, said about 80% of the TN visa holders his company helps secure serve as swine technicians. The rest work on maintenance crews or in feedmill operations or as office staff.
Moving workers to a permanent visa status
Some companies are looking for ways to legally retain workers for the long term.
Tyson Foods has a program called the Tyson Immigration Program, or TIP, to help its existing employees move to a permanent visa status. Tyson employs over 40,000 immigrants and refugees from over 160 countries who speak 60 different languages at their U.S. plants, said Garrett Dolan, Tyson Foods' senior manager of corporate social responsibility.
TIP helps people become citizens, renew paperwork for green cards and ensure they have employment authorization renewals.
Tyson’s immigrant workers can face a number of barriers to upgrading their visa status, including finding immigration legal experts in rural locations where Tyson plants are located. Immigrants also struggle to know whom to trust, especially when they’ve been taken advantage of in the past.
Tyson partners with a nonprofit organization, Immigrant Connection, which provides Justice Department-certified staff personnel to Tyson plants to meet confidentially with employees who seek the service. Tyson pays for the consultations offered on-site and also offers to pay for citizenship processing.
“We believe that if you can remove these concerns that a newcomer has about their immigration status, you can stabilize them in their personal life. And when you stabilize them in their personal life, you build loyalty,” he said.
Over the past five years, they’ve seen high retention rates in the more than 1,000 employees per year who have become citizens.
Obtaining U.S. citizenship also requires basic literacy skills and English proficiency, and Tyson offers free ESL classes in many of its locations before or after work shifts.
Fair Food Program aims to address worker, farm concerns
Even as employers in the ag and food sector struggle just to find workers, some farms and companies are also trying to address public concerns about the treatment of farmworkers with the creation of the Fair Food Program.
Participating growers and buyers agree to implement a “code of conduct” which outlines protections for farmworkers such as wages and hours, freedom from retaliation, and health and safety requirements such as access to shade and adequate water. Growers in return receive purchasing preferences from participating buyers such as Whole Foods, Wal-Mart and others who desire products purchased under improved labor conditions.
Jon Esformes, CEO of Sunripe Certified Brands and chief operating officer for Pacific Tomato Growers, was the first grower to sign an agreement with the Fair Food Program in 2010. He said what started out as an effort to ensure legal compliance with labor laws has made the company a “workplace of choice.”
When many operations were struggling to find workers during the pandemic, participation in the Fair Food Program turned into a “huge economic benefit” because workers wanted to come to their farms, said Esformes, speaking on a panel during the USDA Ag Outlook forum in February 2023.
Lupe Gonzalo, a farmworker and senior staff member with the Coalition for Immokalee Workers, said farmworkers prefer to work on farms in the Fair Food Program. For those workers, it is a “relief for them to be working on a farm where their basic human dignity is being respected.”
Lupe Gonzalo, Coalition for Immokalee Workers
“Too often, lack of access to language services, outreach and USDA programs leaves them vulnerable to challenges including food and housing insecurity, lack of health care access and inadequate job protections,” Padilla said in a statement.
His Supporting our Farm and Food System Workforce Act would establish an office at USDA to serve as a liaison between the agency and farmworkers “providing a platform for their concerns and interests and helping develop recommendations and new initiatives for the department.”
The 2008 farm bill established a dedicated liaison for USDA and farmworkers nationwide but has “lacked sufficient staff and resources to adequately address farmworkers’ needs,” according to a release detailing the bills.
Farmers fear more farm production move out of U.S.
Jones, the Ohio vegetable grower, tries to make the case to lawmakers about the need to fix the H-2A program. He tells them it’s a matter of fact that without immigrant labor, the fruits and vegetables Americans consume will be harvested by foreign hands.
“Our choice as a society is whether we want that to happen domestically where we can regulate that production, shipping and processing of that food,” Jones said.
“When we force our production of food offshore, we lose the ability to regulate how it’s being grown, what chemicals are being used to grow it, who is harvesting it, and how those folks are treated.”
More than 60% of fresh fruit and more than 35% of fresh vegetables consumed are produced by a foreign competitor, and those numbers are going to continue to increase, according to Marsh of the National Council of Agricultural Employers.
Agriculture Secretary Tom Vilsack said in many circumstances throughout the history of the U.S., immigrant laborers have done the work that was difficult and hard.
“And did it in a way that conveyed a sense of value and respect for work, and then explained to their children and grandchildren that they needed to do better,” Vilsack said, as those future generations of immigrant workers went to school or started a profession.
“That’s the secret sauce of America, that these folks come over, they work hard to take care of their families and encourage their kids to do something better,” Vilsack said. “When you basically don’t have a system that’s working, you essentially minimize the ability of our country to have that kind of entrepreneurial spirit.”
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