Colorado growers may soon receive the answer to labor shortages that have plagued their farms for the past two years. On June 5, Gov. Bill Ritter signed into law a pilot program — the first of its kind in the nation — to help bring farm workers from Mexico to the United States to harvest crops. But the state’s new law — which has received only a modicum of attention (beyond Rep. Douglas Bruce’s well-publicized incendiary opposition to what he termed "illiterate peasants") — remains rife with questions, including whether it may flop altogether, leaving Colorado farmers continuing to watch their unpicked crops rot on the vine.
The project is the brainchild of state Rep. Marsha Looper, a Republican from Calhan in eastern El Paso County. Though Looper ran for office in 2006 in part on an anti-immigrant platform, she changed her tune when constituent farmers raised complaints over the lack of workers on their farms. Labor has become increasingly scarce since the Legislature passed a slate of anti-immigrant bills in 2006. Even legal workers feared coming into the state, and the number of farm laborers dropped dramatically. Last season, Colorado farmers were short 12,000 workers.
So Looper partnered with state Sen. Abel Tapia, a Pueblo Democrat. The two initially envisioned establishing an outreach office in Mexico, where a state employee would connect Mexican workers to farmers in Colorado. But the lawmakers soon realized that they were stepping in federal immigration territory and had to significantly water down their plan.
"At one point we were thinking to petition the federal government to allow us to do some of their work," says Tapia. "But the federal government won’t give waivers to states to deal with foreign countries."
Rather than create a new program entirely, Colorado’s new law seeks to work within the confines of the federal H2A visa, an agricultural worker program. Looper did not return phone calls seeking input for this article, but Tapia says the two kept the bill deliberately vague, in order to figure out how best to put Colorado resources to use in navigating the complex federal process. And though the bill contains strong stipulations to prevent workers from staying on in the United States undocumented after their employment ends, it still received wide scrutiny from several anti-immigrant Republicans, including El Paso County’s Bruce, who created a firestorm of criticism when he called migrant laborers "illiterate peasants" on the House floor.
The bill received criticism from the other side of the aisle as well. The Colorado Immigrants Rights Coalition denounced the program as a "solution that does not fit the problem" and called for a "federal fix" to immigration policy rather than an expansion of the H2A visa. The organization also pushed to remove punitive measures against laborers who missed 24 hours of work; in an early version of the bill they would have been reported to the federal immigration police.
Over the next six months a panel, including representatives from the state departments of Labor and Agriculture, will convene to create the pilot program that will ultimately expedite the federal process and bring 1,000 workers into Colorado in the program’s first year, the 2009 harvesting season. But members of the oversight panel will have their work cut out for them. By many accounts, the federal H2A visa is a frustrating and inefficient program. According to Tapia and others, many Colorado farmers report applying for temporary migrant workers through the visa, only to receive their laborers halfway through the season or not at all. On top of that, the visa application is known to be mystifyingly complex.
"[The H2A] program–even its authors say it was designed not to run very easily," says Jim Miller, policy and initiatives director with the state Department of Agriculture. "They didn’t want to create an incentive to get foreign workers when there may be [domestic workers] out there. It was designed to be slow, difficult and expensive."
According to Tapia, a farmer who wants to hire foreign workers through the H2A visa program must notify the federal government and go through a background check to ensure that he is not a convicted felon and hasn’t hired undocumented workers in the past. If he is issued a green light, his application is forwarded to the state’s Department of Labor, which takes a look at the unemployment rate in the farmer’s region. If unemployment there is very high, then the application will be denied on the grounds that there should be a substantial number of laborers already in the community. But if the unemployment rate is low, the farmer is directed to get in touch with a private agent in Mexico or elsewhere who will then round up the workers, conduct background checks and health screenings, and transport those individuals to the farm.
Oftentimes, a farmer’s application process stalls when it comes to dealing with the foreign agent. If the agent doesn’t do a proper background check on each migrant worker, then the federal government can stall the process if even a single employee appears as a security threat. Many agents also demand an exorbitant fee from the farmer and the worker alike.
"If the farmer has to pay $10,000 to the agent, and a portion of that is passed onto the worker, then the worker is practically spending his whole summer to pay off the debt that he owes to the agent," says Tapia. "When you get those kind of numbers, you really question the economic benefit of the whole program."
Tapia says that the state’s pilot program will likely pick out agents for the farmers to work with, and then "bird dog" those agents to make sure that they aren’t overcharging the farmer or being negligent with the background checks. It will also guide new and inexperienced farmers through the H2A application process, making sure that each application is pristine; even small mistakes or omissions can slow the process by weeks.
Yet when the program is up and running, no one knows whether it will actually solve the labor shortage, or just make the H2A visa process slightly easier to navigate. "Because the program is a pilot, it is designed to find out what the state can do," says Miller. "Maybe it won’t do much at all."
And in the meantime, farmers and their advocates are growing increasingly antsy to bring more workers to the state. "I’d like to see us take up every step of the process but the homeland security piece," says Benjamin Waters, the government relations director at the Rocky Mountain Farmers Union. "In a lack of federal action, the state has to step up."