The Enid News and Eagle, Enid, OK

Local and State News

July 22, 2011

Dilemma for farmers

Editor’s note: Oklahoma Watch is a nonprofit, investigative and in-depth reporting team that collaborates with other news organizations and higher education to produce journalism that makes a difference in the lives of Oklahomans. This is the second part of a four-part series exploring immigration issues.


It’s cheaper to hire an American.

Pecan farmers Chuck Selman and his son Chad want to make it clear that rather than paying thousands of dollars to legally bring a foreign laborer to work on their farm, they would prefer to just hire John or Jane Doe from down the street.

But finding legal U.S. residents interested in harvesting pecans in the Tulsa area never has been an easy task.

“Basically, we couldn’t find any labor in the area,” said Chad Selman, operator of S&S Pecans. “I was spending more time running back and forth to town to try and find guys to come work, and getting newspaper and radio ads, than I was actually harvesting the crop.”

So, in 2007, the Selmans started using a temporary agricultural visa program to hire workers from other countries — legally. The H-2A Temporary Agricultural Labor Certification Program exists in the event there is a shortage of U.S. citizens to perform agricultural labor.

The Foreign Labor Certification Data Center reported during the 2010 fiscal year, about 49 agricultural companies in Oklahoma were certified to hire 337 foreign laborers through the H-2A program. Nationally, about 56,000 H-2A visas were granted in 2010.

However, farmers, program advocates, lawyers and human rights activists have concerns and complaints about the program, along with its counterpart, the H-2B visa program for non-agricultural jobs. Critics say not only are both programs burdensome and expensive to use, but they also are abused in ways that point to larger issues within the U.S. immigration debate.

The Selmans are looking for eight workers but aren’t optimistic they will find a U.S. citizen to employ.

“Some of these guys who would show up — I knew nobody in their right mind would hire these people,” Chad Selman said. “You can tell they’re not going to be good workers, and it’s a terrible interview, but you’re required by law to hire them, unless you have something by law that says you don’t have to.”

An H-2A employer must continue to hire U.S. citizens who apply for the job until the H-2A workers have finished half of their work contract.

The Labor Department, the H-2A certifying entity, does not track how many U.S. legal residents take the jobs advertised, said Joshua Lamont, U.S. Department of Labor spokesman.

When the Selmans first used the program in 2007, one U.S. citizen came to their farm and interviewed for the job. Then the ice storm of 2007 came and interrupted harvesting for two years. In 2009, no one responded to newspaper ads seeking workers. Last year, they got four applications.

“And, of course, every single one of them, we said to them, ‘Come back at this day at this time,’ and not a single one of them showed up,” Chad Selman said. “They’re kind of here more just for the interview, from my perspective, so they are able to still get their unemployment check from the government.”

Anyone drawing unemployment from the state of Oklahoma must apply for two jobs per week. If a person receiving benefits is offered a job that he or she could be reasonably expected to do, he or she must take that job, said John Carpenter, the Oklahoma Employment Security Commission public information officer.

Carpenter said the commission’s staff audits some claims, and if they discover someone with a fraudulent claim, they can charge that person for the time they were making fake unemployment claims.

The staff does not check claims every week because of the large volume of payments. In 2010, the number ranged from 53,000 to 78,000 unemployment payments granted per week.

In 2010, the Oklahoma Employment Security Commission found 4,731 unemployment benefit overpayments totaling $3,345,640. So far, the commission has collected $1,832,959 in reimbursements from claimants.

David North, a Center for Immigration Studies fellow, remembers a temporary work program that came long before the H-2A program.

North, who blogs for the conservative group that favors tighter restrictions on immigration, worked for the Labor Department in the 1960s during one of the first guest worker programs, the Bracero Program. Started in the 1940s during World War II, the Bracero Program brought Mexican laborers to the U.S. to perform farm work. It ended in the 1960s.

The idea farmers cannot find U.S. citizens to perform agricultural labor is not a new complaint.

“We’ve been hearing this for 50 years,” said North, assistant to the U.S. Secretary of Labor under the Kennedy and Johnson administrations. “It’s amazing what Americans will do if they have half a chance.”

The H-2A program exploits foreign workers and potentially displaces American workers, he said.  

“Particularly because of the recession, we really don’t need to bring people from overseas or over the Rio Grande because we have plenty of Americans looking for jobs, some of them on unemployment,” North said. “... If you poke around, you’ll find legal residents to do this job.”

North said if American farmers paid more, U.S. citizens might be more willing to do the work.

Workers in the H-2A programs are paid whatever the highest wage is — either the Adverse Effect Wage Rate, which is the minimum wage the Department of Labor determines for agricultural workers, the prevailing wage for the position they’re filling or the federal or state minimum wage.

Of the jobs reported through the Foreign Labor Certification Data Center, about half of the H-2A positions in Oklahoma last year paid between $9 and $10 an hour. All of the positions paid at least $7.25 an hour but no more than $12 an hour, according to the center’s data.

“One of the reasons why all of these nonimmigrant programs prosper and exceed politically is because the lawyers and the doctors and the journalists are not competing with these folks,” North said. “This is something happening to the lower one-third of the American labor market, and those folks, given the decline and fall of unions, have no voice, and the people of the upper-half of the economic order are absolutely not threatened by these folks.”  

Chuck Selman started his pecan farm 30 years ago. To harvest the 500,000 pounds of pecans they expect to produce this year, the Selmans likely will bring eight foreign laborers from Mexico to their farm in Skiatook. Through the H-2A program, the Selmans will pay for transportation, food and housing.

They also will pay a third party, an H-2A agent, a few thousand dollars to process their paperwork and ensure they checked all the right boxes. And while they will pay to advertise for the openings, they’re skeptical they will fill with American workers.

As expensive and complicated as it is, the H-2A program is the only legal outlet the Selmans said they have, but frustrations associated with the program tempt some farmers to take a different path, Chuck Selman said.

“I did have a farmer the other day say for the cost of getting the jobs done and doing all of this, they were just hiring ones who had papers and might be legal, might not be legal, because the fines for that probably weren’t as bad as the fines (through the program),” Selman said.

More than half of the agricultural workers in the U.S. are illegal immigrants, according to the U.S. Department of Labor. Meanwhile, the Pew Hispanic Center estimates of the 1.8 million people in Oklahoma’s work force, 55,000 are illegal immigrants.

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