Proposed Bill Signals Hope for Farmers and Trouble for Rights Groups

A bill to help short-handed Colorado farmers is being criticized by some as the wrong way to address the shortage of agricultural workers in the state.A bill that would create a state system to process federal H-2A visa applications is sparking cautious optimism among Colorado farmers struggling to find workers. But the proposal is raising alarm among immigrant and worker rights advocates, who say it perpetuates a flawed and inefficient federal program.

The Nonimmigrant Agricultural Seasonal Worker Pilot Program was introduced earlier this month by Rep. Marsha Looper, R-Calhan, and Senate President Pro Tem Abel Tapia, D-Pueblo. Following the passage of strict immigration laws last year and during the 2006 special session, Tapia says even legal migrants avoid the state out of fear, leaving farmers short-handed and forced to watch their livelihoods wilt on the vine. 

“We’re not trying to invent a new program. We are just trying to expedite the current H-2A program,” Tapia said. “We need comprehensive immigration reform, but the federal government has failed to give us that. I agree the H-2A program is fraught with inefficiencies and red tape, and that is exactly what we are trying to work though with our bill.”

The federal H-2A program for temporary agricultural laborers allows farmers to hire foreign workers if they can demonstrate the need. But that process, along with background checks and the involvement of several governmental agencies, can hold up applications for months.

HB 1325 calls for requesting a waiver from the U.S. Department of Labor to allow the state to handle many of the steps involved in processing H-2A visa applications. Once a waiver is obtained, the bill calls for entering into an agreement with a Mexican government agency that would recruit and help screen potential workers.

The bill, like the federal H-2A program, requires farmers to provide their workers with meals, housing and the necessary equipment to work. Employers must also pay for a round-trip bus ticket from the job site to the border, but the Looper-Tapia proposal includes a provision to allow farmers to recoup — through payroll deductions — up to $500 in travel costs per worker.

The bill would allow workers (no families) to be in the United States for a maximum of 10 months at a time. The workers would not be able to seek other jobs while in the state and would be required to carry an identification card stating who employs them and how long they are authorized to be in the country. To ensure the workers return home, 20 percent of their pay would be withheld and wired to them once they report to the agency in Mexico.

“Both Rep. Looper and I want something that will pass,” Tapia said. “This is not an immigration bill in any way. This is a work bill, and it is for people to come over, earn money and then go back home.”

Both the Colorado Farm Bureau and the Rocky Mountain Farmers Union support the proposal, which will be discussed in legislative committee this morning.

“This is a vital piece of legislation to keep agriculture going in Colorado,” said Benjamin Waters of the Rocky Mountain Farmers Union. “Colorado is second only to California in agricultural production in the West, and as planting season approaches, producers are going to be looking for a way to get legal workers on time when they need them in the fields.”

According to the Department of Agriculture, Colorado needs about 10,000 temporary workers each year. Landon Gates of the Colorado Farm Bureau says that in the absence of comprehensive federal immigration reform, which his group supports, an expedited H-2A program is the best labor-starved farmers can hope for.

“The H-2A program is the only way to get legal temporary workers into this country,” Gates said. “And with farmers facing increased immigration enforcement, we are looking at any way possible to get legal workers, and that means relying on a program we know is broken.”

But immigrant and worker rights advocates say relying on an inefficient federal program is not the best way to address the shortage of migrant labor in the state.

“This bill would perpetuate a system wrought with problems and exploitation,” said Gabriela Flora of the American Friends Service Committee in Denver. “This comes out of a real need, but we need to look at the larger symptoms of the problem — state legislation that is unwelcoming to low-wage workers and the lack of worker protections in general.”

Several parts of the Looper-Tapia bill trouble Jennifer Lee, managing attorney in the Migrant Farmworker Division of Colorado Legal Services. First on the list is the provision that forbids workers from switching employers once they are here. Under the bill, workers unhappy with their employer can complain to the Department of Labor, which is obliged to find them another job. But Lee is not convinced.

“In theory it is nice to think that if you had state agency enforcement, that might address the abuse and exploitation that goes on,” Lee said. “But there simply aren’t the resources to investigate every case of abuse that comes up, and the workers themselves are afraid to speak up because they fear retaliation. They are scared not only of being sent home, but of not being able to come back if they make a complaint.”

Lee also objects to withholding 20 percent of workers’ pay until they return home. She posits a fairer approach would be to offer the workers incentives to go back, perhaps a bonus of some kind.

On the subject of the ID card called for in the bill to track temporary workers, Lee notes that workers under the current H-2A program qualify for a Colorado ID since they are lawfully present in the state.

But the point that could stop this bill in its tracks, Lee says, is the issue of preemption of federal laws. Lee says she knows of no other state that has proposed to take over a federally administered program in the way the Looper-Tapia bill does. 

“This bill talks about replacing functions of the U.S. Department of Labor,” Lee said. “I think Congress would have to amend the statutory language — it’s not up to a federal agency to grant a waiver.”

Lee says a better solution is for the state and agricultural organizations to help farmers navigate the complex paper maze required to apply for H-2A workers. She notes such a system would improve the turnaround time as processing delays are often due to errors or holes in producers’ applications.

“It’s an alternative that makes a lot more sense and costs the state a lot less money,” Lee said. “It doesn’t solve all the problems with the H-2A bureaucracy, but neither does this state bill.”