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Temporary visa programs bring foreign laborers to U.S. legally

Posted on July 29, 2011
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Chad Selman, operator of S&S Pecans, pours a zinc mixture into a sprayer machine on the back of his all-terrain vehicle as his father and company owner, Chuck Selman, waits. The Selmans do most of the work on their farm during the summer and hire temporary visa workers, usually from Mexico, during the fall to help with harvesting pecans.

It’s cheaper to hire an American.

Pecan farmers Chuck Selman and his son Chad want to make it clear that rather than pay thousands of dollars to legally bring a foreign laborer to work on their farm, they would prefer to hire John or Jane Doe from down the street.

But finding legal U.S. residents interested in harvesting pecans in the Tulsa area has never been an easy task.

“Basically we couldn’t find any labor in the area,” said Chad Selman, operator of S&S Pecans. “I was spending more time running back and forth to town to try and find guys to come work, and getting newspaper and radio ads, than I was actually harvesting the crop.”

So in 2007 the Selmans started using a temporary agricultural visa program to hire workers from other countries, legally. The H-2A Temporary Agricultural Labor Certification Program exists in the event there is a shortage of U.S. citizens to perform agricultural labor.

The Foreign Labor Certification Data Center reported that, during the 2010 fiscal year, about 49 agricultural companies in Oklahoma were certified to hire 337 foreign laborers through the H-2A program. Nationally, about 56,000 H-2A visas were granted in 2010.

However, farmers, program advocates, lawyers and human rights activists have concerns about the program and its counterpart, the H-2B visa program for nonagricultural jobs. Critics say not only are both programs burdensome and expensive to use, they also are abused in ways that point to larger issues within the U.S. immigration debate.

‘Plenty of Americans’

The Selmans are looking for eight workers but aren’t optimistic they will find a U.S. citizen to employ.

“You can tell they’re not going to be good workers, and it’s a terrible interview, but you’re required by law to hire them unless you have something by law that says you don’t have to,” said Chad Selman.

An employer in the program must continue to hire U.S. citizens who apply for the job until the workers have finished half of their work contract.

When the Selmans first used the program in 2007, one U.S. citizen came to their farm and interviewed for the job. In 2009, no one responded to newspaper ads seeking workers. Last year, they got four applications.

“And, of course, every single one of them, we said to them, ‘Come back at this day at this time,’ and not a single one of them showed up,” Chad Selman said. “They’re kind of here more just for the interview, from my perspective, so they are able to still get their unemployment check from the government.”

David North, a Center for Immigration Studies fellow, writes blogs for the conservative group that favors tighter restrictions on immigration.

The idea that farmers cannot find U.S. citizens to perform agricultural labor is not a new complaint. “We’ve been hearing this for 50 years,” said North, assistant to the U.S. Secretary of Labor under the Kennedy and Johnson administrations.

The H-2A program exploits foreign workers and potentially displaces American workers, he said.

“Particularly because of the recession, we really don’t need to bring people from overseas or over the Rio Grande because we have plenty of Americans looking for jobs, some of them on unemployment,” North said.

Workers in the visa program are paid whatever the highest wage is between several standards. Of the jobs reported through the Foreign Labor Certification Data Center, about half of the positions in Oklahoma last year paid between $9 an hour and $10 an hour. All of the positions paid at least $7.25 an hour but no more than $12 an hour, according to the center’s data.

North said the programs don’t threaten jobs of white-collar workers.

“This is something happening to the lower one-third of the American labor market, and those folks, given the decline and fall of unions, have no voice. … These folks keep motel rates low and the price of tomatoes low.”

‘Possibility to exploit’

Additionally, the guest workers are less troublesome than American workers, North said. The workers are indentured to the employer and thus are counted on to show up because they have no other options. They also can’t join a union, go on strike or leave their jobs to stay in the country legally, he said.

Mark Elam, Oklahomans Against the Trafficking of Humans coalition director, said he worries about the number of government employees who work to hold employers accountable.

“If you’ve been doing it for years and you’re a person without morals or ethics to some degree, and nobody ever comes and checks on you, no one ever comes and checks your books, and no one ever asks you if what you’re doing is right, the possibility to exploit those workers becomes very real,” Elam said.

Another problem with the temporary work programs involves the recruiting process as some workers learn about the programs through a recruiter in their country.

Trusting recruiters not to exploit workers was enough of a concern for Oklahoma City immigration attorney Doug Stump that he no longer has a large number of clients in the program. The program itself is not corrupt, but some of the people who use it are, Stump said.

Chuck Selman started his pecan farm 30 years ago. To harvest the 500,000 pounds of pecans they expect to produce this year, the Selmans will likely bring eight foreign laborers from Mexico to their farm in Skiatook.

Through the program, the Selmans will pay for transportation, food and housing. They will also pay a third party, an agent, a few thousand dollars to process their paperwork and ensure they checked all the right boxes. And they will pay to advertise for the openings that they’re skeptical they will fill with American workers.

As expensive and complicated as it is, the work program is the only legal outlet the Selmans say they have, but Chuck Selman said he knows the frustrations associated with the program tempt some farmers to take a different path.

Temporary foreign worker programs

People from other countries who want to work in the U.S. legally can apply for one of the temporary work visas available.

H-2A visa: This program is for temporary agricultural work, such as harvesting wheat or picking fruit. A foreign laborer is allowed to work in the U.S. on an H-2A visa for usually no longer than a year.

The program has no cap, so the number of workers who come on an H-2A visa depends on how many the government approves. There are several requirements that employers must meet to acquire H-2A workers, including providing free housing and paying transportation costs. Employers pay H-2A workers either the Adverse Effect Wage Rate, which is the minimum wage for agricultural workers set by the U.S. Department of Labor; the prevailing wage for the position they’re filling; or the federal or state minimum wage.

H-2B visa: This program is for nonagricultural labor in fields such as landscaping, theme parks and construction. The visa lasts usually no longer than 10 months, and the program has an annual cap of 66,000 workers. H-2B employers have to fulfill several conditions but do not have to provide housing. Workers in the H-2B program are paid either the prevailing wage for the position they’re filling or the federal or state minimum wage.

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