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Immigration reform can’t pass Congress. Here’s how that’s hurting Kansas, Missouri farmers

By Daniel Desrochers, The Kansas City Star
Published: April 14, 2024, 6:00am

WASHINGTON — It’s difficult for Mark Fellwock to find workers for his dairy farm.

He’s competing against businesses in town, where the pay is often higher and the work is often easier. So it can be hard to find good, reliable workers to help keep the dairy operation up and running.

“Our daily struggle is labor,” Fellwock told The Star. “We fight it every day.”

Last year, Fellwock traveled to Washington hoping to change that. He spent time at the Capitol, asking lawmakers to support a bill to reform a program that allows farmers to bring in migrant workers on a short term basis – called the H-2A visa program.

Currently, the H-2A program is only open to seasonal workers. That doesn’t fit Fellowock’s needs. He wants the program to allow year-round workers, which would make his dairy eligible to hire people for parlor work – helping to milk the cows.

His appeal fell on deaf ears.

Congress has been unable to pass comprehensive immigration for decades. And as partisan politics harden divisions on issues like border security and legal pathways to citizenship, it has become even more difficult to reform programs where there appears to be some common ground, like the H-2A visa program.

“There are things we could agree on, that 60 votes in the Senate could be had, a majority of the House would support, a president would sign,” said Sen. Jerry Moran, a Kansas Republican. “But we get stymied because we don’t do everything. And therefore we can’t do something.”

The inability to do something has left farmers in Kansas and Missouri struggling amid a lasting labor shortage in the agriculture industry. The two states are among the top agriculture producers in the country, yet employ far fewer migrant farm workers than states with less agricultural output.

In 2023, Kansas had 1,406 migrant workers under the H-2A visa program, employed by 220 businesses. Missouri had 906 migrant workers, employed by 116 businesses.

Both states have seen an increase in migrant farm workers since 2015, the farthest back the Department of Homeland Security keeps public state by state data on H-2A visas. The increase comes as the rural population has continued to decline and small farms are being bought out by larger, corporate farms.

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But the program still doesn’t work for many of the farms common in Kansas and Missouri. Instead, it’s geared for farms that grow fruits and vegetables, like the apple orchards in Washington, the orange groves in Florida and the peach trees in Georgia.

Stephen Devadoss, an agricultural and applied economics professor at Texas Tech, said the program is mostly used by fruit and vegetable farmers for seasonal harvests, not the row crops like corn, wheat, soybeans and sorghum that are common in Kansas and Missouri.

Ryan Haffner, the owner of High Plains Agriculture, is one of the Kansas farmers who uses the H-2A visa program to harvest row crops. In 2023, he hired 22 migrant workers to drive tractors, combines and trucks to help harvest sorghum, wheat and corn.

Haffner’s labor pool generally doesn’t consist of the migrant workers from Mexico who often help pick vegetables. Instead, he largely relies on workers from South Africa or countries in Europe.

Under the program, Haffner is required to pay the travel cost for his workers, along with providing housing and meals during the time they work for him.

Every year, he has to go through the same process. He fills out paperwork, gets permission from the government to hire workers, then flies them from their home country to get to his farm. They work for a season, driving the tractors and combines and trucks. Then they go home and the next batch of workers comes in.

“It’s like Groundhog Day, every year,” Haffner told The Star. “We have to ship all our people home, we have to do this big application process, hope we get approved. Then when we do get approved, we have to bring all these people over. So we’re spending anywhere from $1,300 to $2,000 per person just for the flight.”

If Haffner could have his way, the H-2A visa program would be more flexible. Like Fellwock, he wishes that he could hire workers for a full year rather than just bringing them in for a season. And – because it’s difficult for him to find workers in the U.S. – he feels like he’s at the whim of the government when it comes to how he can operate his business.

Recently, Haffner said, the Biden administration wanted to remove trucking work from the H-2A program, which would make his business ineligible. Instead, the new Labor Department rule increased the wages for heavy and tractor-trailer truck drivers by about 43% between 2023 and 2024, significantly raising his labor costs.

“We just go along for the ride,” Haffner said. “You’re either in the program or you’re out of the program. And because of the labor shortage, if we’re out of the program, we’re out of business.”

In November, the Biden administration proposed a rule that would give migrant and seasonal workers more labor protections, including access to union protections, in an effort to empower workers afraid to speak out against abuse from employers who brought them overseas.

“The fear is if they were to report, then the employer would terminate their visa,” said Alexis Guild, the vice president for strategy and programs for Farmworkers Justice, a non-profit that advocates for seasonal and migrant farm workers. “And it could also impact future recruitment because many of the employers use recruiters and there’s fear of blacklisting.”

Kansas Attorney General Kris Kobach wrote a letter signed by Missouri Attorney General Andrew Bailey and 20 attorneys general opposing the rule.

While the Labor Department has the power to adjust wages and propose new rules for workers, it would be up to Congress to change the law to make it work better for employers like Fellwock and Haffner.

Sen. Roger Marshall, a Kansas Republican, said the issue has been on his radar since he was first elected to the House in 2016. He supported a House bill in his first term to reform the H-2A visa process that attracted bipartisan support.

The bill would have allowed for year-round workers and some migrant workers would be eligible for a three-year visa. But it also would have eliminated the requirement that farmers provide housing and meals for their workers. It failed to pass out of committee.

Marshall was among the Senators who helped kill a recent bipartisan immigration bill – which did not include significant reform to the H-2A visa program – for being insufficiently conservative.

He said that while he is very aware of the labor issues facing farmworkers – calling the lack of labor one of the top challenges facing Kansas farmers – he stressed that border security needed to be handled before any immigration bill.

“It just seems like the number one concern in the nation right now is this open southern border,” Marshall said. “All discussions are dead until we secure the border.”

Moran, on the other hand, is hoping Congress can do something to address the labor shortage, passing pieces of immigration reform where there’s bipartisan support. He said the rural communities in Kansas that have shown signs of growth in the past few decades are those that have embraced immigrants, like Garden City, which is now a majority minority city.

“We certainly need people who want to work,” Moran said. “Agriculture particularly needs greater labor. We are stymied in Kansas in growing our agribusinesses and in growing our farms because we need people to work.”

But, Moran said, when he asked Homeland Security Secretary Alejandro Mayorkas if he was willing to work on areas of immigration reform where there’s bipartisan consensus, the secretary said he wanted comprehensive reform.

Moran said he took that to mean that they weren’t going to do anything.

That hasn’t deterred Fellwock, the chairman of the Missouri Dairy Association. He’s hopeful that a bipartisan bill, called The Farm Workforce Modernization Act, can somehow make it through a divided Congress.

In the meantime, he’s at the whim of whoever pulls into his driveway.

“We’re starting to have a few come in wanting jobs, needing jobs,” Fellwock, the dairy farmer said. “And so we’re kind of encouraged with that. But boy, if we could have a visa program, where we could take advantage of those and be able to employ them through that, that would be tremendously helpful.”