Josh Shepherd
Resource Center Manager
National Center for Farmworker Health
(512) 312-5463

Web Posted: 10/31/2004 12:00 AM CDT

Elizabeth Allen
Express-News Business Writer

Guadalupe Sanchez deftly laid a lattice of dough across a pie in the peach stand's kitchen as the morning sun heated up the Hill Country air outside.

After preparing a half-dozen pies and cobblers, he joined his two cousins pruning trees in the adjacent orchard at Daniel Bacon's Wild Boar Farm. A few days later, all three boarded a bus to Mexico, loaded with clothing and gifts for family in southern Guanajuato, home in time for the festival of La Virgen de Guadalupe.

They were traveling on H-2A visas, which they can obtain once a year for seasonal agricultural work, as long as they have an employer lined up in the United States.

The visa is a source of controversy and has given rise to allegations of abuse by employers and recruiters. Farm worker advocates say immigrant labor isn't needed and that the visa is a strategy to keep farm wages low. A bipartisan immigration bill that would streamline it is stalled in Congress.

Getting workers with the visa involves three federal agencies, inspections and a mind-numbing mountain of paperwork.

And it's absolutely worth it to Daniel Bacon.

"It does not intimidate me now," said Bacon, a ruddy-faced farmer with seemingly endless energy. "It used to."

When Bacon bought what became Wild Boar Farms near Stonewall three years ago, the previous owner recommended that he also take over the paperwork required to get Sanchez, who already worked there, to return.

The process started with a three-page application, but by the time he got into it, Bacon felt like he was trudging through the federal government's version of "War and Peace."

The first inch-thick bundle of paperwork he sent in was mailed back to him because he had placed his phone number on the wrong line.

He was flabbergasted as to why the clerks couldn't just retype the number in the right spot.

But the bureaucrat he reached saw it differently.

"She said, 'Mr. Bacon, if we move that, then we have tampered with a federal document,'" Bacon said. "Everything has to be just right."

As part of the application process, Bacon was required to advertise in the local newspaper and post his job opening with the Texas Workforce Commission to ensure that no American workers were denied jobs.

In the three years he's used the program, Bacon said, not one U.S. citizen has applied for the job.

The Hill Country may be a particularly tough area to find low-wage labor, because unemployment rates are relatively low. Also, an influx over the past decade of urban commuters and retirees means not only that incomes are high, but that when those high-income people hire help, they're able to pay more than the average farmer can.

According to U.S. Citizenship and Immigration Services, 27,700 people entered the country with H-2A visas in 2001, the most recent year for which data is available. That's a little more than 10 percent of the work force employed that year in farming, nursery work and ranching, earning an average of $7.45 an hour.

Bacon must pay his workers at least $7.29 an hour, based on an annual federal wage survey for the region.

Another hurdle Bacon faced was the Texas Workforce Commission's inspection of the house he would provide his employees. The inspector told him a window was too small.

"Nit-picky stuff like that makes you think, 'Now, why are they picking on me?'" Bacon said. But he enlarged the window and stuck with the process, and after three years of filling in the right blanks on the right forms, he's got it down.

"Just do what they ask," he said, "and it becomes a lot easier."

That's how it often works with local farmers, said immigration lawyer Nancy Shivers. She and other immigration lawyers often help larger businesses deal with the paperwork to import skilled labor. But for small farmers, the profit margins are generally too slim to make it worthwhile.

"Usually, it's the wives who persevere and get these knocked out," Shivers said.

Sometimes the professionals aren't much help.

Jason Verstraeten owns a cotton harvesting business and, starting in the spring, travels slowly north across the state clearing out farmers' fields. Last spring, he paid a Houston lawyer $3,000 to help him get six H-2A workers from Mexico.

He kept expecting them any time, but as the months crawled by and he had to make do with what he said was unreliable labor, the lawyer kept telling him that the government had not moved on his paperwork.

"We've been working, but not like we could be if we had the right people here," he said.

A reporter's calls to the lawyer's office were not returned, but shortly afterward Verstraeten got word that his workers were on the way.

There are recruiters and brokers who charge less than law firms do. One farmer, who did not want to give his name or details, said he had paid a local company called Head Honchos for help. Representatives of that company did not return repeated phone messages left with an answering service.

Some brokers have been accused of milking the system, charging laborers far more than the $100 they must pay at the consulate when applying for a visa. Growers also have been accused of abuses.

Legal Services of North Carolina has sued the growers association in that state over its use of a blacklist of workers who caused trouble — in some cases by complaining about bad living conditions.

Sanchez's cousin, Sergio Correa Hernandez, had worked on the H-2A visa for a year picking tomatoes for a big grower in Tennessee.

The conditions were not as comfortable as at Wild Boar Farms, he said. Thirty people slept in one house, 250 workers in all, picking tomatoes as fast as they could. He was glad when Sanchez told him Bacon wanted more help, and he came to Texas two years ago.

Last year, they brought another cousin, Catarino Avila, who had done H-2A work with tobacco in North Carolina. Avila said the conditions in that job were all right, but he'd rather be here.

Like his cousins, Avila wishes he could bring his family to the United States. Even if he had plenty of money in Mexico, he'd move here and go back to visit.

"It's very hard, life in Mexico," he said.

Coming north on a visa means there are no hassles, no shakedowns at the border, no punishing treks across the countryside that undocumented immigrants face.

But some prefer to cross without the visa, Avila said, because they can go where they want. He and his cousins are legally tied to Wild Boar Farm.

In this case, it's OK with them, because the boss is required to provide adequate housing, a kitchen, a way to wash clothes and a decent wage.

The pay is well above the federal minimum of $5.15 an hour and is an average of area agricultural wages. It's meant to keep farmers from driving down area wages.

But that's one thing that agribusiness wants to change. The wage is too high, said American Farm Bureau spokesman Austin Perez.

"If you're trying to get a wage for strawberry pickers who live in a remote area outside of San Antonio, what you're getting is a wage that includes crop dusters," Perez said.

A bill called AgJobs would freeze wages for three years at the 2002 level. Then Congress is supposed to come back and re-evaluate the wage, but in case it doesn't, it will be adjusted upward for inflation. Right now, it's adjusted upward based on average area wages.

AgJobs would also give immigrants — both undocumented and those with H-2A visas such as Sanchez, Correa and Avila — an opportunity to apply for citizenship.

For that reason, it has the support of United Farm Workers, despite the union's philosophical stance against importing agricultural labor.

"We believe it's another way to get slave labor or cheap labor," said UFW Texas Director Rebecca Flores.

The UFW is willing to compromise on that issue to see foreign workers get a shot at citizenship and better protection of their rights.

Others say the importation of agricultural labor should be as easy as the importation of skilled labor, which is a more streamlined process.

The enforcement of worker protections, they said, is a separate issue.

"You're always going to get ugly and evil employers," said San Antonio immigration lawyer Simon Azar-Farr. "The agency ought to clamp down on those who do not live up to the promises they make."

But the application process should be "just like the person who goes to the embassy and applies for a tourist visa to see Disneyland."

Azar-Farr said he no longer does H-2A visas, in part because it's such a hassle and the cost to hire him isn't worth it to small agricultural businesses in the way a skilled software designer is worth it to a larger company.

But he sympathizes with farmers who are supposed to apply for the workers up to four months before they need them.

"The very word 'seasonal' suggests changing needs," he said. And he called the local advertising requirement "idiotic."

"You want to have a program with the presumption that there is no local labor available," he said.

Lack of willing workers has been a common, and increasing, complaint among San Antonio area farmers for years, and it's forcing more to deal with an element they would rather avoid — the federal government.

Peach grower Gary Marburger has relied for years on Mexican resident aliens who gained their status in the 1986 amnesty program. Their pay works out to about $8.50 an hour, he said, but that labor pool is thinning out. He's considering, with some dread, the H-2A application process.

The last time Marburger advertised for help in the area, he got one phone call — from an undocumented immigrant who declined to work for a starting wage of little more than minimum.

"If I've got somebody who doesn't even have papers and doesn't think that's enough money, then I'm surely not going to get anybody else — and I live very meagerly," Marburger said. "I'm trying to stay in business."

Verstraeten said labor has been an ongoing issue for his cotton harvesting business.

"The people you find from here, they just up and leave," he said. "It's kind of too hard a work, I guess."

UFW's Flores said she doesn't believe local farmers can't find local labor. She described a UFW effort to stop Idaho farmers from bringing in H-2A workers. The union took a number of U.S. citizens up to apply for the jobs in Idaho, but the interview process, she said, was rigged.

Many applicants spoke only Spanish, while the interviewers spoke English and used translators. They only interviewed a fraction of the applicants, Flores said, sent the rest home and got their H-2A workers anyway.

"It was just a ruse, as far as I am concerned, in the way they worked around the rules."

But she admits it's beyond her understanding as to why small, government-shy farmers would rather deal with the mountain of paperwork, submit to inspections, provide housing and pay well above the minimum wage to bring in foreign workers.

"They all say American workers are lazy, and they don't want to work. Right," she said. "I don't believe that."