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Legal avenues to secure visas for dairy workers

Karena Elliott for Progressive Dairyman Published on 29 September 2017

Ask any dairy producer about their greatest concerns for the future and, within minutes, the topic of labor will be mentioned. For U.S. dairymen, the issue of immigration will likely come within the same breath.

“The current labor situation we are experiencing now threatens the livelihoods of dairy farmers in every region of this country,” argues Randy Mooney, a Rogersville, Missouri, dairyman and chair of the National Milk Producers Federation (NMPF) Board of Directors. “Our current immigration system is failing America’s dairy farmers.”

With more than half of all dairy employees in the U.S. being foreign-born, dairymen find themselves on the forefront of one of the hottest topics addressed during the recent presidential election.

“The reality is: Farms employing only U.S. citizens are a very small minority of the milk produced in this country,” explains John Rosenow, a fifth-generation dairyman and owner of the 550-cow Rosenholm Dairy along with his wife, Nettie, in Cochrane, Wisconsin. He has 20 employees. In addition to the dairy, they have a compost business called Cowsmo with sales in 15 states.

“If the consumer wants an adequate and affordable supply of all dairy products, they must accept the fact dairy farms must use immigrant labor,” argues Rosenow. Retail milk prices would increase by 90 percent if all immigrant labor was lost, according to a report commissioned by the NMPF. The supermarket price of a gallon of milk, which averaged $3.37 in June, would skyrocket to approximately $6.40.

Although the issue of worker documentation is on the minds of owners and managers throughout the U.S., few are willing to go public with their comments for fear of drawing attention to themselves and their neighbors. Rosenow is an exception.

“Our dairy, and I presume about 75 to 80 percent of the milk produced in this country, is totally dependent on immigrants to get the work done,” he says. “If none of us speak up, we can expect the worst outcomes.”

Our country’s “broken system” of immigration does offer a number of paths for securing legal documentation to live and work in America. However, the options are difficult at best for dairy laborers. They are also expensive and time-consuming. Both politicians and trade organizations are working to address these problems, and solutions can’t come fast enough.

If you are interested in securing a visa for an undocumented immigrant, there are two basic options currently available, one based on the efforts of the immigrant’s family and one employment-based. According to the U.S. State Department, most immigrants receive visas in one of these two categories.

Both visa options require the skills of a licensed immigration attorney who practices within your state of residence. While Progressive Dairyman has assembled the advice of a number of attorneys from throughout the U.S. in preparing this information, it should simply serve as a reference to begin the complex process with someone who can best represent your legal needs.

Hard questions

“In this industry, there is often a great deal of trust between dairy owner and employee,” describes Nicholas Nevarez Jr., an immigration attorney who practices in Texas and counts a number of dairies in both Texas and New Mexico as clients. That trust is crucially important when an owner wants to secure legal documentation for an employee. At the beginning, both must ask and answer some difficult questions.

The first step is to determine if the individual is eligible for lawful permanent residency in the U.S. Not everyone is. If the individual has overstayed a previous visa, submitted fraudulent documents in the past or been involved in drug trafficking, they may be ineligible.

In order to apply for an immigrant visa, the foreign citizen must be sponsored by a relative who is a U.S. lawful permanent resident or a prospective employer. This sponsor starts the immigration process by petitioning the U.S. Citizenship and Immigrations Services (USCIS) on behalf of the immigrant with the help of their attorney.

Family-based petition

A U.S. citizen or lawful permanent resident may submit a family-based petition for a foreign national to receive a visa through several channels. The foreign national might marry a lawful permanent resident or have a child over the age of 21 who is a lawful permanent resident.

Citizens and lawful permanent residents can serve as the sponsor for spouses, parents, children and siblings to receive permanent residency, including work visas.

Therefore, one of the first conversations an attorney will have regarding an immigration case is to try and identify if the individual has any family members who can serve as a sponsor. Sensitive personal information will be discussed and, while difficult, this step is crucial.

“Your attorney, when an agreement for representation has been signed, is bound by attorney-client privilege and cannot disclose any information you give them without your permission,” explains Annie L. Rice, a licensed immigration attorney with Khazaeli Wyrsch Law Firm of St. Louis, Missouri.

“Only by providing an attorney with all the information they ask for can they explore every option an immigrant may have to stay in the U.S. legally.”

A child who is a U.S. citizen must be at least 21 years old in order to petition for his or her undocumented parent, according to Nevarez. “If the parent entered the U.S. with a visa, then they are eligible to adjust status to a lawful permanent resident,” he explains. “I am able to get them a work permit within 60 to 75 days.” If the undocumented parent entered the U.S. illegally, the parent will need to procure a waiver of inadmissibility from the USCIS.

A U.S. citizen spouse may petition for his or her undocumented spouse. “Like the child, the rules are the same,” adds Nevarez. “If the undocumented spouse entered with a visa, then they are eligible to adjust status to a lawful permanent resident and get a work permit within 60 to 75 days.”

If the undocumented spouse entered the U.S. illegally, then the spouse will need to procure a waiver of inadmissibility from the USCIS.

Employment-based petition

If an individual has no family member who can sponsor their application, there are basically two types of work visas available for dairy labor. The H1B visa is for skilled labor, and the H2A visa is for unskilled labor. In both cases, the employer must file for labor certification approval from the Department of Labor as well as an I-140 Petition for Alien Worker with USCIS.

“H-1B specialty visas are reserved for highly specialized workers,” Nevarez says. “Many dairies utilize this visa to procure veterinarian-type workers to care for the cattle.”

The jobs of skilled workers require at least two years of training or work experience. These positions are neither temporary nor seasonal. Professionals are further defined as skilled workers whose jobs require at least a baccalaureate degree from a U.S. university or college or its foreign equivalent degree.

“The main issues with this visa are finding workers who qualify educationally and the numerical limit,” Nevarez says. The annual numerical limits are 65,000 for bachelor’s degree holders or similar work experience and 20,000 for master’s degree holders. “The average costs for this visa are $4,000 to $5,000,” Nevarez says. “The average processing time is nine to 12 months.”

“I wish dairies would advertise vet jobs or similar responsibilities to Mexican universities,” Nevarez suggests. “There is a goldmine of qualified candidates at these universities.”

The second type of work visa most commonly available for dairies is the H2A visa for unskilled or other skilled labor. This program allows U.S. employers to bring in foreign nationals for temporary agricultural jobs. The process begins with filing Form I-29, a Petition for Non-Immigrant Worker, with USCIS. Employment agents and agricultural associations can also file this form on behalf of a prospective worker.

“The H-2A agricultural-based visa is often used by my clients for workers here on a temporary status,” Nevarez explains. “My clients prefer this visa because there is no numerical limit attached to the visa. Therefore, we are able to apply for the visa at any time in the year.” Nevarez’s clients use this program to have the visa holder work on fencing, fields, gathering feed for cows or other agricultural activities.

Dairy laborers who fall into this category may be eligible for further immigration documentation through a process known as “labor certification.” During this lengthy process, an employer must demonstrate there are no U.S. citizens or legal permanent resident workers who are “ready, willing and able to perform the job” for which an immigrant has been hired. Labor certification begins with the U.S. Department of Labor and ends with INS.

“The notion immigrants are taking these jobs away from American workers is simply not true,” Mooney says. “Dairy farmers have tried desperately to get American workers to do these jobs with little success – and that’s despite an average wage well above the U.S. minimum wage.”

H2A visas are temporary and granted for a specific length of stay. Extensions of up to a year may be requested, and the maximum length of stay within this classification is three years. At that point, the individual must leave the U.S. and remain outside the country for three uninterrupted months before re-applying.

After Nevarez’s clients have employees legally documented on an H2A visa, he works to help them achieve the next step of the immigration process. “Once the visa holder is here in the U.S., we then adjust his or her status to that of a lawful permanent resident under the ‘other worker’ category,” he describes. The average costs for the H2A visa are $3,000 to $4,000. The average processing time is four to seven months.

“The ‘other worker’ category provides the worker a lawful permanent resident status (green card),” Nevarez explains. “I am in the adjustment portion of this exact process with a dairy client [in the Southwest].”

Other issues

The Immigration and Nationality Act also sets numerical limits on the countries whose residents are applying for citizenship. Currently, no immigrants from a single country can exceed 7 percent of the total U.S. immigrant numbers in one year, whether they are family-based or employment-based visas. This limit is one of the key reasons for the backlog of applications from certain countries.

Holding a visa is not the same thing as qualifying for citizenship. Family-based or employment-based sponsorship is the first step in applying for legal permanent residency. Often, an individual must wait several months or years to apply for legal permanent residency after receiving a visa.

In order to become a U.S. citizen through naturalization, an individual must have had legal permanent residency status, also referred to as holding a green card, for at least five years and be at least 18 years old. After that period, they may apply for citizenship demonstrating continuous residency and “good moral character.” Other requirements include passing an English proficiency test as well as a U.S. history and civics exam.

Due to the complicated process of securing employment-based visas, some dairies have used agencies in order to obtain legal immigrant labor. Under this option, the agency is responsible for all the government paperwork.

However, it carries a tremendous cost, often averaging $15,000 per worker. And these laborers arrive untrained with no guarantee they will work under the strenuous conditions required. Experts warn this is a “tricky proposition.”

New developments

If the broken system of immigration remains unaddressed in our country, experts fear a mass exodus of dairy workers, which has the potential to strike a fatal blow in vast regional segments of the industry. Therefore, both trade associations and politicians are pushing back in hopes of identifying legislative solutions.

“Reforms to immigration policy should include expanding access to visas for seasonal and temporary labor, and a temporary guest worker program, complete with an employee verification system that allows employers to verify the legal status of their employees,” argues Wisconsin Representative and Speaker of the House Paul Ryan.

Dairy producers are, therefore, counseled to get involved by contacting their local congressional representatives. However, work within your trade organization first in order to arm yourself with persuasive numbers addressing economic impact and animal welfare so you can make an educated statement.

The importance of fixing the system cannot be overstated. The NMPF report found the U.S. dairy farms that employ foreign-born workers produce nearly 80 percent of the nation’s milk.

“By providing a method to legally link employers with legal immigrant workers, we would relieve pressure on the borders from people who attempt to illegally immigrate to the U.S. in search of employment,” Mooney says. “In turn, government agencies would have the ability to more effectively allocate resources to illegal and unauthorized aliens who mean to do us harm – criminals, terrorists and drug smugglers.”

Rosenow believes we have reached a critical point in the dilemma of immigration. “I am not in the business of trying to tell other farmers how to run their business,” he admits. “I have enough to do running mine.” But he knows that in the 20 years he has been actively speaking out, he’s watched two and sometimes three generations of immigrant employees face the problems brought on by the broken system.

“Most dairy farms in the Midwest are running short-staffed, which is not sustainable,” Rosenow says. Other dairymen from across the U.S. agree.  end mark

Karena Elliott
  • Karena Elliott

  • International Freelance Writer
  • Amarillo, Texas

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