U.S. Farmers Concerned About E-Verify

Everyone has to eat, and somebody has to pick the fruits and vegetables that wind up on our tables each day – just who picks it is very much on the minds of farmers and government officials who need to resolve an ongoing problem: the tension between the farmers’ need for a dependable source of agricultural labor and the government’s desire to crack down on illegal immigrant workers who fill a substantial proportion of the picking jobs on U.S. farms.

According to Congressional Research Service, slightly more than half of the seasonal agricultural workforce is not legally authorized to work in the United States. (See Farm Labor Shortages and Immigration Policy, by Linda Levine, Congressional Research Service, 09.Nov.2009.) In 2009, the most recent year for which statistics are available, nearly 150,000 seasonal agricultural laborers worked here legally on the H2A visa program, of whom more than 140,000 were from Mexico – a great many to be sure, but a fraction of the workforce needed to bring in the harvest every year; the difference is largely made up by unauthorized workers from south of the border. (See 2009 Yearbook of Immigration Statistics, U.S. Department of Homeland Security, at 84-87.) This situation has persisted for years, abetted by lax enforcement and a certain degree of complicity by members of Congress who turn a blind eye in the name of lower agricultural labor costs, lower food prices, and voter support in agricultural areas.

Late last month, the Supreme Court dealt a blow to that old paradigm when it upheld an Arizona law requiring businesses to use E-Verify to check the employment eligibility of potential hires, and allowing the state to suspend or revoke business licenses from companies that knowingly hire illegal immigrant workers. (See Silent Raids and E-Verify Immigration Enforcement are Destroying U.S. Farms, by Daniel Altschuler, Christian Science Monitor, 02.Jun.2011.) Now that the Supreme Court has cleared the way, the Christian Science Monitor notes, other states are likely to follow Arizona’s lead in passing mandatory E-Verify laws – indeed, Georgia has already done so. A similar measure is likely to pass in the GOP-run House of Representatives, the article predicts, although its fate in the Senate is less certain. The problem, according to the Christian Science Monitor, is that this “enforcement-only” approach does nothing to solve the labor-market needs of American agriculture, and only succeeds in creating a climate of fear among the workers upon whom it depends.

The question now is whether aggressive new enforcement measures will lead to a shortage of agricultural workers, and thus to higher food prices. It already is difficult to find people willing to do the hot, dangerous, exhausting work of picking fruit and vegetables. Congresswoman Zoe Lofgren, a California Democrat whose district includes several agricultural areas, told the Associated Press that “We are headed for a train wreck” in the ag labor market, and that “The stepped up [workplace] enforcement has brought this to a head.” (See Ag Industry Faces Labor Woes in Immigration Debate, by Alicia A. Caldwell, Associated Press, 05.Jun.2011.) The AP article neatly capsulizes the problem:

“Lofgren said farmers are worried that their workforce is about to disappear. They say they want to hire legal workers and U.S. citizens, but that it’s nearly impossible, given the relatively low wages and back-breaking work. Wages can range from minimum wage to more than $20 an hour. But workers often are paid by the piece; the faster they work, the more they make. A steady income lasts only as long as the planting and harvesting seasons, which can be measured in weeks. ‘Few citizens express interest, in large part because this is hard, tough work,’ Agriculture Secretary Tom Vilsak said this past week. ‘Our broken immigration system offers little hope for producers to the do the right thing.'”

The immigration system will not get any less broken if state and federal authorities insist on requiring farms to vet all of their employees through the E-Verify system. The problem is that E-Verify checks the names of prospective employees against databases maintained by the Department of Homeland Security (DHS) and the Social Security Administration (SSA) – databases that employers and civil liberties groups say are riddled with errors. (See Immigration: You Can’t Rely on E-Verify, Los Angeles Times editorial, 27.May.2011.) According to the Los Angeles Times, the rate of errors kicked out by the E-Verify system have been estimated – conservatively – to run as high as one percent:

“…meaning that one out of every 100 legal job applicants could be found ineligible to work. Nearly half of those will not be able to fix the problem even though they are citizens or legal workers, according to the National Immigration Law Center. The reality is that the error rate may be much higher. Consider that in 2008, Intel Corp. reported that just over 12 percent of its workers were wrongly tagged as ineligible, according to the Migration Policy Center in Washington. Or that a survey by Los Angeles County of employees found an error rate of 2.7 in 2008 and 2.0 in 2009, according to a report submitted to the Board of Supervisors. The error rate is especially high in cities with large immigrant communities.”

In other words, E-Verify is likely to compound an already difficult problem, and may lead to an agricultural labor shortage. As the Associated Press points out:

“There isn’t enough capacity in the system to process, interview and approve visa applications for the nearly one million seasonal workers who take to the fields every season. Farmers are required to pay for a worker’s transportation from their home country to the fields, provide housing and other benefits. Even minor violations of the numerous rules and regulations that govern the H2A program can lead to hefty fines [Cathleen] Enright [vice president of government affairs for the Western Growers Association] said. ‘It’s too expensive, it’s too litigious, it’s too bureaucratic,’ said Lee Wicker, deputy director of the North Carolina Growers Association. ‘We need a program that farmers can use and have confidence in.'”

Indeed. Certainly it makes sense for DHS and SSA to improve the accuracy and integrity of their databases, and it also would be worth streamlining the existing H2A visa system to make compliance easier, and thereby encourage employers and prospective foreign employees to make legal – rather than illegal – employment arrangements; these interim actions might help to avert a disastrous agricultural shortage in the short term, but would be no substitute for comprehensive immigration reform. One hopes it will not take an agricultural labor crisis to get Congress off the dime.

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.