by Kevin Joseph Ryan
MONTPELIER – The Vermont State Senate has been working on a Guest Farm Worker Program,
bill, S.238, An act related to establishing the Vermont farm guest worker program, since January of this year. The bill states its purpose as “…to enable noncitizens and nonpermanent residents to establish residency, identification, and work authorization on Vermont farms”, however, in the bill, there is no requirement to prove compliance with Federal immigration law. To that end, a hearing was held last Wednesday, February 29th, to get input from a number of experts. It appears the proposal may be the beginning of more questions than answers.
Vermont having such a program for undocumented workers may not be legal under Federal law. According to Arthur Edersheim, an Attorney at Vermont Law School, “A guest worker program would really be Vermont trying to institute its own local visa, allowing people to come into the U.S., and that is entirely reserved for the federal government, the same is true for work authorization. Congress has decided who can come to the U.S., who can work, who can work in certain fields and so forth, and any legislation Vermont would try to enact would never withstand court challenge.”
Last September 13th, an incident occurred in which Vermont State Police pulled over Danilo Lopez and his cousin Antonio-Meza Sandoval for speeding in Middlesex. Neither had visas or green cards on their person, as required by law, so the trooper summoned federal immigration authorities. Lopez has admitted to working in Vermont illegally, but a hearing with the Vermont Human Rights Commission determined that Lopez had been racially profiled. Governor Shumlin then changed the State Police policy over the event, and Lopez received a human rights award at a banquet in Burlington in December.
One purpose behind the “guest worker program” is said to be to prevent a similar situation by creating an identification card that could be given to police and other officials. The text of the bill, however, makes such an I.D proof of residency and qualification for “any state and local government benefits, services, duties, obligations, or purposes,” which may include welfare, state-sponsored health care or even voting for foreign farm workers. Among the Senate Agriculture committee, Vermont Senator Bobby Starr noted, “It would be cheaper even at $100 per license per card to have than to have state police up there harassing these folks.”, while Senator Sara Kittel noted that this card would “…include access to health care”.
S.238 was introduced to the Senate by Windham County Democrat Senator Jeanette White. Senator White felt that it was unfair that the Federal government provides a guest worker program for seasonal farm workers and ski resort employees, but not dairy workers. The bill, as introduced, lists the Vermont Department of Agriculture as being responsible for such a program, although Senator White has suggested the Vermont Department of Public Safety, who handles police and corrections, would administrate the registry.
The United States Government provides several programs allowing foreigners to emigrate temporarily for the purpose of work. The best known, the H-1B visa, allows foreign workers to be brought to the U.S. in “specialty occupations” when no domestic workers are available to perform the work. Such occupations might be along the lines of engineering or architecture. Another such program is the H-2A visa, which allows hiring of workers for farm labor on a “temporary” or “seasonal” basis, defined by the US Department of Labor as less than one year. At the federal level, several bills have been proposed to allow for longer visas to accommodate dairy farms, who have no defined season, but as Susan Sussman, staffer for Vermont’s U.S. Senator Patrick Leahy stated at the hearing, “As Congress goes, anything related to agriculture is very difficult…” and no changes to the law have proven successful in Washington.
Vermont Congressman Peter Welch has introduced the H-2A Improvement Act of 2011, which he claims would allow dairy farmers to take advantage of this visa. Employment Attorney Leon Sequeira, formerly of the U.S. Department of Labor, has explained that historically, dairy farms have qualified under this program, with the Bush Administration simplifying the rules to allow for dairy labor under H-2A, but under Obama Labor Secretary Hilda Solis, the rules were changed in 2010. They currently allow H-2A visas for sheep and goat herders, but do not permit dairy work, as there is no “seasonal need”. According to Sequeria, “The secretary during the Obama Administration made it her number one priority to undo those Bush rules.” Recent crackdowns with I-9 employment eligibility reviews have reduced the number of H-2A visas issued to 55,000 last year. Even if the law were expanded to allow for dairy work under a visa scheme, employers would have to engage in a substantial effort to exhaust the local labor pool before hiring foreign workers, and they would have to offer the federal Adverse Effect Wage, currently $10.56 per hour in Vermont, to both domestic and foreign workers.
All of this has all conspired to cause a shortage of dairy workers in Vermont recently, with an increase of 700% in Latino farm workers in Vermont in the past 10 years, according to the advocacy group Migrant Justice. The estimated total of foreign Vermont dairy workers is 1200-1500, and roughly 20% of Vermont dairy farms have become reliant on such workers to function according to Senator Philip Baruth. Many dairy farm workers now simply work illegally, joining the 7.5 million undocumented aliens now working on farms and fields across the United States.
Migrant Justice would like the new program to take the benefits even further, by making the new I.D. a full driver’s license for undocumented aliens, so that, according to the group, the workers would have “The same respect and dignity we all deserve….” United States law does allow driving with a Mexican issued license as a tourist, but not after obtaining a job. This does make it difficult for farm workers to get to the store, although employers are required under the visa program to make food and cooking facilities available to workers. Robert Appel of the Human Rights Commisson noted, “Shopping at Grand Union isn’t a crime.” However, for undocumented aliens, working without permission and fraudulently crossing the border into the United States is a federal crime, one the Vermont Senate appears ready to ignore.