Farmers Plow Through Red Tape to Hire Legal Workers

Capital News Service

KENNEDYVILLE- Bernie Kohl, Jr., president and part owner of Angelica Nurseries Inc., knew something was wrong when the then-Immigration and Naturalization Service showed up on his property with buses on a fall day in 1996. The INS went into the company’s offices, hung up phones, and lined workers up outside while they went into the company’s Human Resources offices to get paper files on all the laborers.

“They went through the I-9s and they scrutinized the paperwork and could say that these documents don’t look genuine,” Kohl said. “We aren’t document specialists, those are the kind of things that we can’t do.”

The raid resulted in around 80 of his workers being deported. The place didn’t quite shut down, but it meant an incredible struggle that year to make the harvest.

That led to a long search to find reliable, legal labor, and Angelica’s entrance in 1999 into the H-2A program, a federal visa program that brings migrant workers to the U.S. for the agriculture sector, but at a high cost both administratively and monetarily.

“The H-2A program never was, never has been, a program that you want to be in,” Kohl said. “But we had to have it because we needed a reliable work force.”

In the past year, about 50,000 workers were approved to come to the U.S. through the program — approximately 500 of them came to Maryland. Ninety went to Kohl’s nursery.

Workers at Angelica Nurseries come predominantly from Mexico and usually spend the days planting, harvesting and burlapping trees and deciduous shrubs to be shipped to landscapers and other professionals, said Kohl.

To bring these skilled laborers to the country, Kohl must jump through a number of hoops, starting with the filing process. He must guess around 60 days out how many workers he will need on the day his contract begins, according to the U.S. Department of Labor.

“We say it’s like looking into a crystal ball,” he said. “We have to make a prediction of what the spring is going to look like.”

During this time, farmers must advertise their available positions in their area as well as in an area with a large population of migrant workers, like Florida or Texas, a practice that generates very few workers, according to a state commission on agriculture.

Even when farmers predict the correct number of migrant workers necessary, they are required to hire, “any able, willing, qualified and available U.S. worker who applies to the employer until 50 percent of the period of the work contract has elapsed, regardless of the number of H-2A workers covered by the employer’s certification,” according to the Office of Foreign Labor Certification. This is known as the “50 percent rule.”

Then the farmers must pay for the workers’ transportation, room, board and meals, in addition to a salary that’s determined by a complex formula, rather than one based on skills or demand.

Kohl pointed out that providing such amenities was not so much of a challenge for his nursery since it was using migrant workers for years before being part of H-2A. However, he said on smaller farms this could be a problem.

“You could have an orchard where the harvest period is only for three weeks and yet they are expected to still build housing on their land,” he said.

To add to the price tag, each worker starts at $10.34 per hour this year, regardless of experience. This wage was determined by the Adverse Effect Wage Rate, the dominant wage calculator used that averages wages of all agricultural workers to produce the minimum amount of pay.

“It is like starting the lowest person at the middle of the ladder,” said Kohl.

Measures such as these were most likely placed in the program to protect American workers, said Merlin Williams, Maryland rural services coordinator in the state Department of Labor, Licensing and Regulation.

But Kohl complained that most American workers who show up for seasonal work at the nursery usually last only a couple of days, sometimes just hours, and most have no prior experience.

“It is a real misconception that Americans are lining up for these jobs,” he said.

Taking part in the program does have its positive side, said Marilyn Sparks, who runs White House Nursery in Upperco with her husband, Loring. Their nursery is a smaller operation than Angelica Nurseries and only relies on five workers each year.

“If we hire someone locally we would have to hire them year-round instead of seasonally,” she said. “Otherwise when the job is done they could legally apply for unemployment and our unemployment payments go up.”

Sparks also said that many of the local workers who could work temporarily do not have the skill set her nursery needs. Her nursery, which grows perennials, spring crops and different varieties of Christmas poinsettias, has relied on the same Mexican family for the last eight years.

The program is still very important to Maryland farmers even with the costs, said U.S. Rep. Andy Harris, R-Cockeysville.

“It is essential to any district where there is an agricultural program,” he said. “However, it has been very cumbersome. We’ve been working with the H-2A program to make it easier to get visas.”

The added cost of the program has exacerbated other financial troubles the nursery has faced, said Kohl. The once-2,100-acre farm has downsized to 1,800 acres, and the last five years have been a challenge due to the down housing market and three summers worth of drought, said Kohl.

“We’re struggling to keep our head above water,” said Kohl. “These programs just don’t help.”

S. Patrick McMillan, assistant secretary, marketing, animal industries and consumer service at the Maryland Department of Agriculture, said he would like to see the program reformed because of people like Kohl

“It’s a great program, but very expensive,” he said. “It’s been difficult with the politics to revise the rules. It’s caught up in a bigger immigration debate.”

Kohl said other farms like his have either gone under or sold their land to developers for a profit. While that’s tempting, since his nursery hasn’t had a measurable profit in five years, Kohl said he does not want to go down this path because he and his family take pleasure in what they do.

“We enjoy growing plants, we enjoy what the plants do for the environment,” he said. “Not that I haven’t thought about what would make an easier living. But we enjoy working with plants. We hope that we can make a turn around and make money in this business again.”