Immigration deal could ease labor shortages and lower food prices

At a sprawling 375-acre farm in Oceanside, Calif., ornamental flowers droop and avocados regularly fall to the ground because there aren’t enough workers to pick them.

Mellano & Company grows cut flowers that are selected and harvested by hand to be sold in flower markets. The window for harvesting lasts four to five days. Workers pick the best flowers, put them in water and preservatives, and keep them in a cooler overnight. They plant daily and harvest weekly. The farm also produces a few vegetables and avocados.

An immigration bill could help fill these labor shortages, provide undocumented laborers with access to permanent resident status, and give farmers more flexibility. But Senate negotiations are stalled by a provision that gives migrant workers greater leeway to sue their employers, and advocates for the bill aren’t sure there is a way forward.

The Mellanos emigrated from Italy to the United States in 1921 and started their own six-acre farm, having previously been migrant farm workers in France. Now the company has about 200 employees but could use many more. They pay $20 an hour.

To hire more workers, the company could use the H-2A visa program—a visa that allows migrants to work on a seasonal basis. According to federal guidelines, if they used H-2A workers, they would need to pay the prevailing wage: about $25. The company can’t afford that. If they don’t make a profit, the bank won’t lend them money for next year.

“It’s impossible for most of us to use, so what happened was our labor force slowly migrated back to being mostly illegal workers,” said Mike Mellano. Mellano took over his father’s business and he is now retired. About 75 percent of California’s farm workers are undocumented.

Spearheaded by Reps. Zoe Lofgren, D-Calif., and Dan Newhouse, R-Wash., the bipartisan Farm Workforce Modernization Act passed the U.S. House of Representatives in 2019 and again in 2021. The bill aims to streamline the H-2A temporary agricultural worker visa program.

Though there is no cap on the number of visas that may be issued, employers say the program is hard to use. Before they can hire any migrant workers, farmers must work with their state workforce agency to recruit new U.S. workers and contact any former U.S. employees. If a qualified U.S. applicant applies, farmers must put them to work for at least 50 percent of the work period outlined by the contract. Employers must pay H-2A workers the prevailing domestic wage so as not to undercut domestic workers by offering foreign workers a lower rate. If the bill passes, employers can file with the many relevant agencies on a single platform and use one request to fill multiple positions throughout the season.

The act also creates a legal pathway for unauthorized farm workers. Immigrants make up about 73 percent of agricultural workers in the United States, and about half of them are undocumented.

“Stabilizing the workforce will protect the future of our farms and our food supply,” Lofgren said. 

California Farm Bureau President Jamie Johansson agrees. “Reform of federal immigration law continues to be a top priority for the California Farm Bureau, and this bill would create meaningful changes that would ease chronic employee shortages and recognize the value of farm work,” she said in a statement.

Agricultural worker shortages are getting worse. The average age of a foreign-born farm worker rose by 16 percent—35.7 years to 41.6 years—from 2006 to 2017, and fewer immigrants are arriving to replace those getting near retirement age.

Arturo Castellanos-Canales is a policy and advocacy associate for the National Immigration Forum. Fewer workers in the fields has contributed to rising food prices, he said: “The produce is going to waste because there is no one to pick it.”

Currently, H-2A visas are seasonal. Under the act, industries with year-long labor needs would be able to use the program. Rick Naerebout is chief executive officer for the Idaho Dairymen’s Association, which helped develop the bill. Dairy farmers in Idaho don’t have access to the H-2A visa program because dairy is not a seasonal industry. Like other agricultural sectors, they are very short-staffed. The bill would allow them to hire workers on H-2A visas for the year-long dairy production process.

“It is very much needed,” Naerebout said. In Idaho, immigrants fill 85-95 percent of dairy jobs. With no access to temporary visas, the majority of these workers are undocumented. If the bill becomes law, “those existing workers are provided legal status and their families protected,” Naerebout said.

Once more migrant workers are hired, Naerebout believes food prices could fall as farms become more productive. “On a lot of the dairy farms … there just isn’t enough labor to get everything done,” he said.

Senate negotiations are stalled by a provision that allows H-2A workers to sue their employers if they believe they have violated labor laws. “That seems to be the last major hurdle on the bill,” he said. The American Farm Bureau argues this provision will lead to expensive lawsuits for farmers who are already on a tight budget.

“That’s an area where our policy is extremely clear. We do not support the inclusion of H-2A under MSPA (Migrant and Seasonal Agricultural Worker Protection Act) in this manner,” said Allison Crittenden, the bureau’s director of government affairs. “So we want to make sure that folks can be out farming and not dealing with frivolous lawsuits that could result from this.”

For farms that hire domestic workers as well as H-2A visa holders, this isn’t an issue. If they employ at least one domestic worker, employers are legally required to extend these same legal protections to all their foreign-born workers.

Naerebout isn’t sure there is a way forward: “It really comes down to those current H-2A users that don’t have legal exposure today … they’re the ones having heartburn over this provision.” It’s all out tug-a-war between those companies and advocates working on behalf of migrant employees. If the bill doesn’t pass before the end of this session of Congress, they are back to “square one.”