by Sid Holt
“Foreigners are better,” Askarkhodjaev added. “Of course I tried not to hire Americans.”
Before a company can bring in any guest workers, it must clear a series of legal hurdles to prove to the government that it has tried but failed to recruit Americans for the job.
Companies that don’t actually want Americans, however, have devised a whole set of creative tricks to get around these hurdles.
Step 1: Don’t Let Them Know the Job Exists
To apply for the right to import foreign workers, a company must first post at least two newspaper job ads, including one on a Sunday, “in the area of intended employment.”
Some employers have a very broad definition of “area of intended employment.”
In January 2011, Talbott’s Honey, a small honey producer, placed ads as required soliciting workers for jobs in Kimball, South Dakota. The ads, however, ran in Elkader, Iowa; Dalhart, Texas; and Hobbs, New Mexico—towns that are hundreds of miles from Kimball.
Talbott’s then told the government there were no available American workers and got permission to import twelve foreign workers instead.
Reached by phone, the company declined to comment on the matter. But when asked why it hadn’t run an ad somewhere in the actual vicinity of the job, Talbott’s wrote that it had tried but the ad “somehow fell thru the cracks,” according to Labor Department records.
Sometimes the government actually abets this tactic. In North Carolina’s Blue Ridge Mountains, seasonal jobs cutting down Christmas trees in the frenzied weeks before the holiday pay well. But year after year, the state’s online job board has incorrectly posted those jobs in the wrong counties, sometimes hundreds of miles from any pine forests. As a result, workers looking for Christmas-tree work close to home face a peculiar paradox: The only way to find the openings nearby is to search in a faraway corner of the state.
Lawyers at Legal Aid of North Carolina have been complaining to the state Department of Commerce about the Christmas tree job-posting discrepancies for years. Yet despite repeated promises by state regulators to fix it, the issue persists, the lawyers said.
Indeed, officials in the state at times seem to make it easy for employers to avoid hiring Americans. During the fiscal year that ended this July, the state’s job bank tallied work orders seeking H-2 workers for 17,496 agricultural job openings, according to the North Carolina Department of Commerce. More than 7,000 U.S. farmworkers had registered with the agency actively seeking work—yet only 505 of them were referred to those jobs.
Kim Genardo, spokesperson for the department, wrote in an e-mail that the state’s “Foreign Labor Certification program is absolutely in compliance with federal law.”
Across the country, employers have run ads that failed to list any contact information, omitted the name of the company, or excluded relevant information such as what kind of job it was, where it was located, or how much it would pay, records show.
Some simply don’t place ads at all.
For years, Linda White ran a business in Livingston, Louisiana, securing H-2 visas for hundreds of employers. Late last month, she was sentenced to eighteen months in federal prison for creating phony receipts in an attempt to convince regulators she had placed newspaper ads for dozens of clients when in fact she had not. During a three-year period reviewed by the Labor Department, her clients were approved for more than 8,000 visas, federal data show.
In an interview, White called the matter “a mistake,” adding that “nobody was going to call for these jobs over dumb newspaper ads anyhow. When clients come to me, what they want is their Mexicans.”
Step 2: Make the Job Sound So Awful No One Will Apply
The H-2 program dates all the way back to 1952, and employers have been coming up with ways to game the system for almost as long.
An information sheet from the Snake River Farmers Association in Idaho from the mid-1980s, obtained by a legal aid group representing farmworkers from Texas, offered a list of tips on how to write job postings so that they would deter American applicants.
“Irrigators or pipe movers is a great job description because no one wants to move pipe,” the fact sheet said. “Ranch Hands,” by contrast, is “a poor description,” the memo noted, adding: “One might get some adventuresome young ladies from Cincinnati seeking the thrill of working on a western ranch. With numerous applications from such U.S. workers, the employer would never get around to recruiting aliens.”
In response to a query from BuzzFeed News, Jeanne Malitz, a lawyer who represents the association, initially said it was “unaware of the source of this document, or whether it was published or ever disseminated” and disavowed its contents. Told of the document’s origin, she declined to comment further.
Step 3: Convince Job Seekers That They Shouldn’t Bother Applying
Despite all the obstacles, some U.S. workers do manage to find out about job openings at the companies that are seeking to hire abroad. But many of those companies set unusually stringent requirements—for their U.S. applicants, at least.
Even for entry-level jobs or tasks as simple as picking melons, some employers demand that American applicants have months or sometimes even years of experience, clean drug tests, high school diplomas, familiarity with botanical nomenclature, knowledge of diabetic cooking, multiple references, or commercial driver’s permits.
Despite the H-2 program’s focus on unskilled labor, employers seeking guest workers routinely demand previous work experience, further raising the bar for Americans. In recent years a full three-quarters of companies approved to bring in agricultural guest workers have listed such requirements, according to a BuzzFeed News analysis of federal data. In some states—as geographically diverse as New York, North Carolina, Montana, and Washington—virtually all agricultural employers demand prior experience.
Such requirements are a way to “filter out U.S. workers,” said Lori Johnson, an attorney at Legal Aid of North Carolina. She noted that some fruit- and vegetable-picking jobs now require three months of experience. And, Johnson said, there is little evidence that such requirements are ever imposed on the foreign guest workers who ultimately get the jobs.
Some requirements also appear racially coded.
“I will keep my pants pulled up around my waist. I will wear pants and shirts that fit,” reads a document that Hamilton Growers required its workers to sign in 2013. “If I have long hair or extensions in my hair, I will fix my hair in such a manner that it can be placed under a hair net.”
Jon Schwalls, director of operations at the farm, said it was “ridiculous” to suggest that the language targeted black workers; those rules were about food and workplace safety, he said.
Step 4: Make Applicants Perform Extraordinary Feats
Early this year, the sign manufacturer Persona, of Watertown, South Dakota, obliged American applicants to take the Thurstone Test of Mental Alertness, which “helps measure an individual’s ability to learn new skills quickly, adjust to new situations, understand complex or subtle relationships, and be flexible in thinking.”
The twenty-minute exam is often deployed to assess computer programmers, accountants, bank managers, and commercial airline pilots, but Persona used it to evaluate—and reject—Americans applying for painting and welding jobs. A Labor Department official questioned whether the test “is going to be administered to foreign workers.”
A Persona official declined to comment.
When American workers showed up to apply for a job at Pro Landscape, in Hillsboro, Oregon, they were told they would have to dig a trench four feet long, a foot and a half wide, and a foot and a half deep within five minutes to be considered for the position, according to Labor Department records.
Manuel Castaneda, the company’s owner, called the task a “fair way” to see who was up to the job. But the Labor Department said the tests appeared “to not be normal” for the industry and to “be restrictive to U.S. workers.” Indeed, Labor Department records show that only five
of the eighteen applicants who attempted the tests passed. “The employer’s tests,” the department found, appear to have “discouraged U.S. workers.”
Step 5: When the Perfectly Qualified U.S. Worker Does Present Herself, Ignore Her
When Nicole Burt applied for work as a stable attendant in Kentucky, she was sure her experience and skills were unimpeachable. As a teenager in Vermont she showed, trained, and groomed horses, and no sooner did she graduate high school than she moved to the Bluegrass State in order to be in what she dubbed “the horse capital of the world.”
In early 2011, she applied to a dozen or so stables, she said, but none called her back. One of them was Three Chimneys Farm, a stately home for legendary thoroughbreds including the 1977 Triple Crown winner, Seattle Slew.
Three Chimneys, based in the town of Versailles, had told federal authorities it was “facing a distinct labor crisis and cannot locate or retain American workers” and that “all U.S. workers who express an interest in the employment opportunity will be interviewed for employment.” But when Burt called to check on her application, she was told no jobs were available.
“Basically we never hire US workers who are applying,” the farm’s director of human resources, LaTerri Williams, told the Department of Labor in a signed statement. “I don’t conduct interviews or take their applications. Basically I just tell them we have no openings.”
Asked by regulators why it didn’t give Burt a chance, as federal law required, the company stated that the single mother of three was better off unemployed than taking the $9.71-an-hour job. “Given the length of the commute, the cost of daycare, the loss of her eligibility for food stamps, it would cost Ms. Burt more to work for Three Chimneys than if she did not work at all,” the company said.
Burt said she never found another job working with horses, and in the months she waited, holding out hope that she’d get a call, she lost both her cars and her house. Almost four years later, the Labor Department awarded her $16,313—the amount regulators calculated she would have earned at Three Chimneys had she been hired as the law required.
Three Chimneys did not respond to several requests for comment.
“I kept hearing the employers say that they couldn’t find anybody. And I just want to smack them, because we’re right here,” said Burt. “I felt betrayed. I just felt like America had let Americans down.”
Step 6: If Compelled to Interview Qualified American Workers, Lie
The Westin Kierland Resort and Spa in Scottsdale, Arizona, was approved for twenty-three foreign housekeepers in 2012, arguing that the golf and convention seasons created a need from October to May. As required by law, the sprawling luxury resort, part of the $12 billion Starwood chain, placed ads for American workers in the Arizona Republic newspaper—but it rejected all five applicants. The company told the Labor Department that some failed to meet a one-month experience requirement.
The following year, however, when government inspectors contacted some of those rejected workers, a different story emerged. One applicant “revealed that she had over 25 years of housekeeping experience” and “used to run her own motel in Colorado,” investigation documents said.
The Labor Department ultimately ordered the Westin Kierland, which has a championship golf course, multiple pools, and a 900-foot “lazy river” spread over 262 acres, to pay a total of $13,500 in lost wages to two American workers it judged should have been hired. In a statement, Bruce Lange, Westin Kierland’s managing director, said the resort disagreed with the Labor Department’s findings but “chose to resolve the matter in order to focus our time and resources on caring for our associates and guests.”
Throughout the Midwest, corn detasseling is a popular summertime gig. So when D&K Harvesting filed a job posting in April 2013—a step it had to take to win approval to import 120 H-2 workers—Katlyn Sanchez rushed to apply. The job, which involves removing the flower from cornstalks, typically draws high school kids and young adults.
But when the Kalamazoo, Michigan, teenager’s mother spoke to a recruiter over the phone a few days later, she was warned that it was “not a good situation for a young female worker alone,” according to a complaint later filed to regulators by Sanchez. “There will be all single men from Mexico” working alongside her, the recruiter later said, and her daughter “could get physically or sexually attacked.”
The recruiter added that D&K “will not be responsible for anything that happens” to Sanchez in the fields. Employers do not have the right to absolve themselves of workplace dangers, nor to decide that they’d rather not hire women. But the recruiter’s tactic worked: Sanchez’s mother agreed not to let her take the job.
The recruiter offered her approval: “I think you’ve made a good choice.”
D&K president Larry Marsh did not return several calls seeking comment.
Step 7: When Forced to Hire Americans, Get Rid of Them as Soon as Possible
Far off the interstate, perched under a big blue sky and surrounded by fields of fluffy cotton, Moultrie, population 14,000, feels frozen in time. Coffee can be found for less than a dollar. The charming central square is listed on the National Register of Historic Places. And the town’s quiet old neighborhoods—some graceful, some ragged—are deeply segregated.
For many black men, job options are especially scarce. In the spring of 2012, Derrick Green, the father of six, had been unemployed and looking for work for several months, while his wife’s uncle, Derek Davis, forty-two, had trouble landing a job because of a pair of old drug convictions. When the two friends went together to the Moultrie branch of the Georgia Department of Labor to review job listings, both said they were desperate for work.
They were referred to Hamilton Growers, one of the area’s largest farms and one of the county’s largest employers, which had posted the openings as part of three separate applications to import a total of 614 H-2 workers that year.
Along with roughly a dozen other folks, most of them black, Green and Davis submitted to drug tests and filled out applications. Picking squash under a relentless Georgia sun for $9.39 an hour is brutally hard and monotonous. But Green, who is athletic and slender, said he “learned to pick” as a child alongside his grandmother. Davis, a former U.S. Army mechanic, said he first toiled in the fields at fourteen.
It was June and already sweltering when they reported to work among lush crops rolling across the red clay. Rumbling old school buses transport workers to and from long rows where they stoop in the hot sun, picking squash, cucumber, and peppers.
Hamilton Growers is owned by the Hamilton family, which boasts that it has cultivated land in this area for six generations. The enterprise has grown into an agricultural behemoth, with more than half a dozen interconnected corporations and LLCs running each aspect of the business: While Hamilton Growers files H-2 visa requests to the Labor Department, Southern Valley Fruit and Vegetable sells produce grown on the land.
Beyond south Georgia, the farm also has operations in Tennessee and in 2003 went international, cultivating hundreds of acres in a remote section of Mexico’s Yucatan Peninsula.
At the headquarters in Norman Park, a twenty-minute drive northeast of Moultrie, a prominent plaque proclaims that the farm commits to “feeding the nations and providing a source of income for those who labor here, as servants of our Lord for His glory.” The chief executive, Kent Hamilton, is beloved by local youths for the zip line over his swimming hole. He is on the board of the nonprofit Georgia Fruit and Vegetable Foundation and has donated thousands of dollars to local elected officials, including former U.S. senator Saxby Chambliss, who lives in Moultrie and previously chaired the powerful agriculture committee.
Nearly two decades ago, Hamilton Growers began bringing in foreign guest workers. It’s a transition increasing numbers of farmers have made in recent years—often, as in Hamilton’s case, after complaining they had lost crops for want of people to pick them.
“You don’t save any money” by using H-2 gue
st workers, said Matt Scaroni, whose family owns Fresh Harvest, a farm-labor contractor based in California that accounted for roughly one-fifth of all agricultural H-2 visas approved in the state last year.
By Scaroni’s calculation, housing, transportation, and legal costs, not to mention state and federal inspections and regulations, cost upwards of $4,000 to $5,000 for each guest worker “before they pick one fruit.”
In the past year, Scaroni said, Fresh Harvest has rented entire motels in Salinas to accommodate workers, along with apartments and traditional farmworker housing. The company has also been forced into once unthinkable expenditures, such as purchasing 3,000 new beds and launching a catering operation to provide meals, he said. In Salinas, he added, a paid cleaning service even visits many of the Fresh Harvest motels.
That’s a very different standard of living from that of many guest workers at Hamilton Growers. Some of them live in concrete dorms, others in rotting old school buses on cinder blocks in a forest near the grower’s packing operation, for which they say they must pay nearly $300 a month. In 2005, health inspectors told Hamilton Growers that its portable toilets couldn’t simply “have a hole cut in the bottom and a pit dug for waste.”
On a recent afternoon, some Mexican H-2 workers sat in the thick heat inside a dimly lit school bus and said that the company wasn’t paying them for all the hours they worked. None agreed to be named. “People are scared,” one of them said.
Their grievances echo those made by more than a dozen Mexican H-2 workers who sued Hamilton Growers and Southern Valley in federal court last year, alleging that the companies had engaged in intentional wage theft. American workers eventually joined the suit.
The companies deny the charge, but earlier this month they agreed to pay $485,000 to settle the lawsuit because, Schwalls said, doing so was less expensive than litigating it.
He said that the company pays its employees properly and that its housing “meets and exceeds” federal standards. All bedrooms have central heat and air conditioning even though it is not required, he said, and there are no pit toilets at the housing site.