Nervousness and frustrations are spreading across the dairy industry. It’s not U.S. Immigration and Customers Enforcement (ICE) raids causing the uneasiness. There’s now an increase in I-9 audits targeting dairies.
At least nine dairies were targeted with I-9 audits over the weekend, according a source in the dairy industry. That follows a South Dakota dairy who was surprised by an audit earlier this month. With reported flaws in the E-Verify system, the audits are resulting in dairies being forced to fire employees who are found to have illegal documents and only given 10 days to do so.
“I’ve heard it from both Texas and South Dakota dairy producers that they are having I-9 audits,” says Rick Naerebout, CEO of the Idaho Dairymen’s Association. “Uncertain as to the timing if these audits were triggered before Trump came out and said he was going to pause enforcement on farms. Really, we haven’t seen the same level of enforcement on farms since he came out a few weeks ago and made those public statements. You’ve had some other public statements that have somewhat conflicted that, but it does feel like there’s a different posture from this administration right now.”
There have been reports of ICE raids in other areas, but the increase in I-9 audits is isolated to mainly two states: South Dakota and Texas so far.
“Honestly, what’s a little bit curious about that is those are both red states, and there seems to have been a focus more on blue states and red states. And you, one of those states seems to be the [Secretary Noem’s] home state,” he adds. “So, there’s some curiousness to it all. I’m really not sure what’s triggering these I-9 audits. Typically, our experience in Idaho when we’ve had a dairy producer go through an I-9, it’s usually triggered by a former employee complaining after they’ve been let go. That’s been kind of the trigger is somebody complaining and then DHS coming in and and conducting an I-9 audit after there’s been an accusation of employment of unauthorized individuals, but really not sure, you know, what triggered these in those two states.”
What the Dairy Industry is Pushing to Change
Even though it seems to be isolated to South Dakota and Texas, it’s creating a nervousness on dairies across the country. And that’s because of the increased issues it’s causing with labor.
The dairy industry seems to be on an island when it comes to finding a legal workforce. Dairies aren’t seasonal, therefore they can’t utilize H-2A, and that’s something the dairy industry is pushing to change.
John Boelts, an Arizona farmer who’s also president of Arizona Farm Bureau, says the farther you get from the border, the more challenging it is to find enough labor within agriculture.
“We need programs that really address what we need in agriculture as far as on a labor basis,” Boelts says. “Many will point to H-2A and say, ‘Well, you have an uncapped H-2A guest worker program,’ and that’s a valid point. However, I’d like to point out that H-2A was designed very keenly not to work very well, to be cumbersome, challenging, expensive, all of the things that don’t fit very well into an agricultural model. That said, it’s the lifeline that American agriculture has today.”
H-2A is a program widely used in agriculture, but one that has drawn criticism for not only the rising cost, but also how complex it is. Those in agriculture argue the system, as it exists today, doesn’t do enough to cover the vastness of American agriculture. That includes dairy farms, dairy processors and produce processors.
And while H-2A is far from perfect, the dairy industry can’t use H-2A today, the one guest worker program that does exist, according to Donald Grady, the senior director of legislative affairs at the international dairy foods association.
“The H-2A program, while it works for large swaths of agriculture doesn’t work for dairy. And because of the fact that dairy is a 365-day-a-year operation, it doesn’t matter — Christmas, New Year’s, your birthday — cows must get milked. And that milk needs to get processed for Americans to safely consume it,” Grady says. “So we are looking to be able to expand the H-2A program so that dairy operations on-farm and in the plant can have another tool in their toolbox to meet their labor needs.”
Changes Are Needed to H-2A to Include Dairies
Grady says for dairy to be able to use the H-2A program in the U.S., the seasonality requirements in the program would need to change to year round. That’s one fix.
“But for processors, we need another specific change, and that is a change to the definition of agriculture, labor and services,” Grady says. “Right now, it does not include processing that does not happen on the farm. So, if you’re on a farm like a packing house for a fruit and vegetable operation, you can still use H-2A workers in that packing plant. But if that packing plan were just across the street and not on the farm, you couldn’t use those workers there. Dairy, obviously, the processing is largely located away from the farm. And so for us to be able to access H-2A, we need to change the definition of ag labor and services so that processing can be included.”
It’s a short-term fix, for what the dairy industry calls a long-term problem. Labor issues have plagued the dairy industry for decades, and it’s a situation that’s only getting worse.
“We need to figure out how we can simply improve our labor pool so that we can meet the needs that we have,” Grady says. “I think as we hear from our IDFA members across the board, we are down about 10% on our labor needs. That accounts to thousands and thousands and thousands of workers. When you look at the fact that we are over 3 million in the dairy manufacturing, retail and marketing side. So when you’re looking at just in the plant, that’s thousands of workers that we need. And this is a tool that would be able to help us in the immediacy.”
There is Momentum for Change
Even though there’s an increase in I-9 audits on dairies, leaders within the dairy industry say for the first time in nearly two decades, there does seem to be momentum for changes to the H-2A program and address the pain points with the current immigration system.
“You do hear some really good things coming from the administration right now about trying to solve the farm labor crisis, and it’s never had this amount of focus from any president, serious amount of focus, and it feels like there’s a serious amount of focus and an earnest desire to try and do something to solve our problem for us, which is a blessing,” Naerebout says. “We’ve been rebuffed by both Republican and Democrat presidencies in the past. We’ve been rebuffed by Republican and Democratic controlled Congresses, and to have a president take this issue on and begin to try and address it, and he and some of his secretaries have taken some pretty strong heat for for trying to solve this problem from his base, but he seems to be really, you know, earnest in trying to find a solution for us.”
E-Verify System is Also Exposing Flaws
One dairy operation was forced to fire nearly 40 employees, as they still scramble to find employees to back fill those jobs. That’s creating a new concern: Are the labor shortages a matter of animal welfare?
“I don’t think we’re quite there,” Naerebout says. “That’s always a concern, especially if you have a number of these audits that happen in a given area, and if you see a response like we saw in New Mexico a month or two ago where the response to that I-9 audit seemed to be DHS showing up and, you know, hauling workers away. That’s new.”
It’s not like these dairies are knowingly hiring individuals with false records. All dairy farms are required to use the E-Verify system, but the recent focus on finding illegal immigrants has exposed another issue: The E-Verify system is also flawed.
It’s a system that’s been used for more than two decades. For employers to make sure they are hiring legal immigrants, they use E-Verify, which is a government program that verifies those employees are authorized to work in the U.S.
In other words, these dairy operations are hiring employees who have been vetted through the E-Verify system. Yet, once an I-9 audit happens, it’s exposing that some of those employees submitted either illegal paperwork, or forms that weren’t theirs. And there’s no way for a dairy to know. That’s what the E-Verify system is meant to do.
It’s a long-standing frustration for dairies who’ve always been exposed to I-9 audits. It’s just until recently, the I-9 audits haven’t been as frequent.
“I definitely feel it’s flawed,” Naerebout says. “We also feel very strongly that it should not be on the employer to determine legal status of people in the country. That should be the job of the federal government. They shouldn’t be putting that on any employer, whether it’s agriculture or any other sector of the economy. That’s an unfair burden to put on the employer.”
What Needs to Happen Long-Term to Fix the Immigration System for Agriculture?
What needs to happen in the long-term? That solution lies with Congress. In order for the U.S. to address immigration laws that were written in 1986, it will take an act of Congress.
“We need to figure out how we can create a system that benefits our farmers by giving them access to workers and benefits the workers so that they can be able to cross the border legally and safely without having to feel like they’re going to get trapped in their home country and not be able to come back and work or feel as though they have to use different means to try and get into this country,” Grady says.
“We need a system that would benefit workers just as much as employers, but it’s the employers who need the workers for sure,” Boelts says.
The reality for growers like Boelts is no matter how high of wages producers pay, they are having more trouble finding the labor needed to fuel the U.S. with fresh produce and food.
“The challenge is for the American consumers, they need to look at it from a fairness standpoint,” Boelts says. “A worker working in Mexico harvesting broccoli or lettuce that then is shipped into the United States, might make $20 a day. Where we’re often offering around $20 plus an hour to work here in the United States. So it just doesn’t make sense. There’s really no reason why we shouldn’t be producing for the U.S. market right here in the U.S.”
Agriculture argues Congress needs to step in. Boelts says he is appreciative for an administration that is listening to farmers. So, what would Boelts tell the Trump administration when it comes to immigration? It’s this:
“I would ask the president and Secretary Rollins to take on a position of leadership, speak to both Republicans and Democrats in the House and Senate, and say, ‘Look, you’ve been hearing about this for years from farmers and ranchers all over the country. We all know what needs to happen. We need to reform agricultural workers, the public policy governing folks coming into the country, both temporarily and permanently. We need options for agricultural producers.’”
Boelts says the solution can’t just be the argument that there is a temporary guest worker program that exists today, because that system is been broken.
“We have cows that need to be milked, livestock that needs to be tended day in and day out, sometimes year round, sometimes temporarily. We needed a program that’s designed to work for American agriculture, period,” Boelts says.
Naerebout agrees that even with the headlines focused on ICE raids, and now increased audits, President Donald Trump is listening to farmers and fixing what many argue is a broken immigration system, and we might finally see some solutions.
“We’ve not had this kind of traction with an administration ever on this issue,” he says. “Maybe Reagan, but I was 7 years old when Ronald Reagan worked on this issue back in 1986, so I can’t really speak to what the mood was then, but we’re cautiously optimistic here in Idaho. We’re watching what the president’s saying, we’re continuing to stay in close contact with our Senate and congressional offices to continue to make sure that when they get the opportunities to put a bug in the president’s ear, and anybody in the administration’s ear about our needs, that that’s happening.”
Naerebout says after 20 plus years, he thinks agriculture finally has a legitimate chance on solving a problem that’s been plaguing the industry. And that solution needs to not only come from the White House, but the long-term fix needs to be addressed by Congress.
