Foreign farmworkers are hired through the H-2A visa program, which allows farms to employ seasonal laborers when they can’t find enough U.S. workers to do the job.
So far this year, only two farms in Whatcom County are using the program, according to the U.S. Department of Labor job registry. They’re both berry farms.
One was Crystalview Raspberry Farm, which told DOL it needed to hire 72 workers. The other was Sarbanand Farms, which hired about 600 workers to pick and sort blueberries on its farm near Sumas.
The Aug. 6 death of Honesto Silva Ibarra, a 28-year-old father of three from Mexico, while working at Sarbanand Farms has focused attention on the visa program and raised questions about regulatory oversight. Federal and state agencies are investigating amid complaints from 70 workers who were fired after they went on a one-day strike to protest what they said were poor working conditions and lack of medical care for Silva.
California-based Munger Farms, which owns Sarbanand, has disputed those allegations.
Some of the fired workers remain at a makeshift camp near Sarbanand Farms.
The workers in Whatcom County were among the 15,611 seasonal farm laborers working in Washington state as of June 2017, with the greatest concentration in Central Washington. Most were brought here from Mexico.
The state has the fourth highest number of temporary agricultural workers in the H-2A program, according to DOL data. Georgia, North Carolina and Florida are the top three in the nation.
The program is growing. Applications this year were up 15 percent over last year.
“It is well-known that farmers are struggling with a serious shortage of workers and this shortage is sometimes related to the particular season and harvest,” said Gerald Baron, spokesman for Whatcom Family Farmers. “We are now dealing with late season blueberries which can be an issue in securing enough workers.”
Other reasons for a labor shortage included greater restrictions at the U.S. border after 9/11, the difficulty of seasonal agriculture work and the desire by Americans to have full-time work year round, according to the head of Wafla, formerly the WA Farm Labor Association.
Wafla, an agriculture association, provides employment and labor advice for more than 700 members in the Pacific Northwest.
Dan Fazio, CEO of Wafla, said the H2-A program wasn’t being used as much in Whatcom County because there wasn’t as much labor-intensive farming left in the county.
“And farms in Whatcom are afraid to use the legal worker program for fear of retaliation by unions,” he said.
The H-2A program allows employers to petition for visas for foreign workers. Farmers agree to pay a minimum wage of $13.38 an hour, which is nearly 22 percent higher than wages paid by farmers who don’t use the program, according to Wafla.
“Workers love the program, because it provides high wages, regulations, numerous paid benefits, and best of all, the dignity of legal presence,” Fazio said. “Compare this to undocumented workers who are working with fraudulent identification. I wish we could help these folks as well. They call us all the time but they are not eligible for H-2A.”
Farms also agree to provide free housing and transportation, including to the job and then back home. Workers who quit or are fired for cause aren’t entitled to free transportation home, according to Wafla, but Sarbanand has offered to provide transportation back to Mexico for all of the fired workers.
Fazio called H-2A “a great program that is working to save agriculture in America,” adding it enabled “workers from Mexico to achieve their dreams of economic prosperity for their family.”
But advocates and attorneys said the program doesn’t do enough to protect H-2A workers. They called for more regulatory oversight.
“That does not pass the straight face test, especially in Washington,” Fazio said. “The worker protections for H-2A are among the highest of any labor program in the nation. We work with six government entities to get the visas, check the contracts, visit the workers, etc.”
The Mexican Consulate is good at helping workers as well, Fazio noted, adding that nearly all foreign workers are visited each year by outreach workers who are attorneys. Paid with tax dollars, they explain the workers’ rights to them.
But some employers, including Sarbanand, put up barriers that make it difficult to reach farmworkers, said Michele Besso, an attorney with Northwest Justice Project.
“These guys have fewer rights than any farmworker out there,” said Andrea Schmitt, an attorney with Columbia Legal Services who has been among those helping fired workers with their rights.
“It takes a lot for farmworkers to stand up and demand anything of their employers and especially in the H-2A context,” Schmitt said. “These workers are really vulnerable. They’re tied to this one employer. They don’t have any ability to leave and look for a different job. They’re wholly isolated from the community. They live on the farm. The farm provides their food. They don’t have connections, drivers licenses, cars.”
The worker visas are only good for the farm that has contracted for them. That means workers either have to stick it out or go home, where they earn so much less, Besso said.
They’re also reluctant to complain for fear of being blacklisted from future employment, legal advocates said.
Besso said the H-2A system has “been set up to meet a labor need, not to meet the workers’ needs.”
“That becomes clearer when there are any problems or when the worker gets sick,” Besso said.
Employers need to be clear with workers about their access to medical care or time off should they get sick or injured as well as their benefits through workers’ compensation, Besso said.