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Experienced field hands at Randy Hardin Farms in Grady pick watermelons at peak ripeness. These H-2A visa workers spend eight months a year working Hardin’s fields for a higher-than-minimum wage, many of them for a decade or longer. 

 

WHEN FARMS NEED HELP

Local attorneys stand ready to help with labor laws

By: Michael Roberts   Photography: Brian Chilson

The growing season is a study in patience—followed immediately by a mad dash to get ripening crops picked and processed before they’ve gone bad. Those delicious heirloom tomatoes, luscious strawberries and glistening heads of lettuce you see at our farmers markets? In many cases, they were picked that very same morning to ensure maximum flavor and freshness. It’s some of the hardest work around, because when picking time is here, there’s no way out other than to get into the fields and get to work. 

To remedy this problem, some farmers turn to the government for help, applying to use foreign workers on temporary work visas known by the designation H-2A. It’s a very complex program, but in a state that relies so heavily on agriculture for a healthy economy, this method of legally using foreign workers has proven a boon to a growing number of farmers. And unlike the undocumented workers who draw such ire from so many, the H-2A program comes not only with protections for farmers and workers, but also American job-seekers who might seek work in the fields.

Being a government program, the H-2A visa program requires a daunting amount of effort: inspections, assessments, unbendable deadlines and loads of complicated paperwork. A farmer needing to plan for a year’s worth of growing has neither the time nor the training to navigate the maze of bureaucracy. This fact has given rise to attorneys who specialize in immigration law and the H-2A process. And although retaining legal counsel constitutes an up-front expense, the benefits of having a good harvest can make the process worth it.

One such attorney is Misty Borkowski with the law firm of Cross, Gunter, Witherspoon and Galchus in Little Rock. She explains that the H-2A approval process consists of five different steps that include various government agencies, including the Department of Labor and State Department. “My job is to make this process as painless to the farmer as possible,” she says. “We deal with these agencies for a living; farmers need time to farm.”

The process isn’t completely without work for the farmer, however. Because the H-2A visa is a temporary one, usually lasting for up to 10 months at a time, farms are required to provide housing for workers while they are in the United States. “An initial assessment should take into account the facilities a farmer has for workers,” says Misty. “In addition, firm ‘dates of need’ need to be provided as well as the number of visa workers the farm is requesting. Once a farmer gives us those things, we do the rest.”

“The rest,” in this case, is first advertising a prospective H-2A farm’s jobs in area and regional venues (such as newspapers and websites) for 60-75 days. During this time, any American citizen who applies for one of the available positions must be given one—a built-in protection that allows local workers first crack at any job that might go to a foreign worker. Once here, H-2A visa workers are allowed to work only for the farm with which they have contracted—but they also receive a guaranteed wage well above the state and federal minimum.

Farmer Andrew Wargo of Baxter Land Management in Watson, one of Misty’s clients, credits the H-2A program with saving his catfish farm. He has been using temporary workers for several years now, and says most of his crew return year after year. “I’d say 90 percent or more have been with us for years. They’ve become like family to us here. We had such trouble finding help before we brought in the H-2A workers, but now I have a crew that knows my operation.”

It’s a sentiment echoed by Josh Hardin, whose father Randy’s farm in Grady has utilized workers on H-2A visas for decades. He stresses that the program comes with very strict guidelines put in place to protect workers. “We just completed a Department of Labor audit and got top scores,” Josh says. “Most of my family’s crew has been with us for more than 20 years. I consider them the most important part of what we do every day.”

Such audits are another reason to retain legal counsel, says attorney Neemah Esmaeilpour of Little Rock law firm Wright, Lindsey and Jennings. “The attorney becomes a layer of protection between the farmer and the government,” he says. “One thing out of place during this process can mean not being approved or even being fined.” How much advance notice does a lawyer need to get going? “It’s never too soon,” Neemah says with a laugh. “This should be part of any farmer’s off-season planning for the next year. Ideally, we’d like 90 days—but we can work outside that ideal, of course.”

Attorneys like Misty Borkowski and Neemah Esmaeilpour want people to know that the H-2A visa program provides an answer to the rise of undocumented workers as well as a remedy for farm worker shortages. Farmers like the Hardins and Andrew Wargo have seen their businesses thrive using the program, and as Andrew puts it, “I want everyone to know they can get the help they need legally.” For a state as dependent on agriculture as Arkansas, it’s a sentiment well worth taking to heart.