Mollie Tibbetts case exposes farms' worst-kept secret: hiring undocumented immigrants

Alan Gomez
Migrant workers pass freshly picked watermelon down a line to be loaded up in a produce trailer at the Mandujano Brothers Produce's watermelon field on Oct. 3, 2017, in Coyanosa, Texas.

Correction & Clarification: A previous version of this story stated that the federal government sent only Japanese immigrants to internment camps during World War II. Most held were Japanese-Americans who were U.S. citizens.

Dane Lang, a co-owner of Yarrabee Farms outside of Brooklyn, Iowa, stood outside his family farm this week and lamented that he had employed the undocumented immigrant charged in the slaying of 20-year-old Mollie Tibbetts.

Then he was asked if any other non-U.S. citizens were among the 10 employees on the dairy farm.

"I don't think I can comment to that," Lang said.

That vague answer highlights the worst-kept secret in the agriculture business: Roughly half of the nation's 1.4 million field workers (47 percent, or 685,000 workers) are undocumented immigrants. And that estimate, from the Labor Department, is a conservative one, with labor experts citing far higher percentages. 

While presidents have approached undocumented immigrants living in the U.S. in vastly different ways, Republicans and Democratic administrations – under heavy lobbying from the agricultural industry – have always treated undocumented farm workers differently.

While the federal government was herding more than 100,000 people of Japanese descent into internment camps during World War II, it was also administering the Bracero Program, which allowed millions of Mexicans to enter the U.S. to work on farms.

When President Ronald Reagan signed a landmark immigration law in 1986 that granted amnesty to nearly 3 million undocumented immigrants, those who worked on farms were given the easiest path to U.S. citizenship.

A bipartisan immigration reform bill that passed the Senate (but not the House) in 2013 would have created a special "blue card" just for agricultural workers and their immediate families that granted them legal status and the chance to become U.S. citizens.

And now, many Republicans are citing Tibbetts' death as a reason to pass a bill requiring all U.S. companies to use the federal E-Verify system to check the immigration status of all job applicants. But even that bill – the Legal Workforce Act filed by Rep. Lamar Smith, R-Texas – gives farmers 2.5 years before they must start vetting their field workers, the only such exception.

Chris Chmielenski, deputy director of NumbersUSA, a group that advocates for lower levels of legal and illegal immigration, said that history reflects both the power of the agricultural industry and the willingness of politicians to help them out.

He says the easiest solution would be to require that all U.S. business use E-Verify, which allows employers to check the immigration status of job applicants using a government website. The Iowa farm that employed Cristhian Bahena Rivera, who is charged with first-degree murder in Tibbetts' death, initially said they used that program to screen Rivera but later backtracked and conceded that they had used a different system not designed to flag immigration violations.

"That would have a pretty big impact on future flows of illegal immigration," Chmielenski said.

But farmers, ranchers and other business owners who rely on undocumented immigrants say passing an E-Verify bill would cripple their industries. Already struggling to recruit enough Americans to do the back-breaking field work, and operating under the constant threat of raids by U.S. Immigration and Customs Enforcement, they say implementing E-Verify with no other changes to the immigration system would put untold numbers of companies out of business.

That's why the U.S. Chamber of Commerce said that it would only support mandatory electronic worker verification if it's coupled with an overhaul, and expansion, of the country's guest-worker programs. The American Farm Bureau Federation goes a step further, arguing that passing E-Verify alone would cause production to drop by $60 billion and food prices to increase by 5 percent to 6 percent.

"Farmers and ranchers get that we have immigration laws in our country, and they want nothing more than to be able to attain their workers legally," said John-Walt Boatright, the national affairs coordinator for the Florida Farm Bureau. "But we cannot have E-Verify without a workable, functioning, accessible guest-work program in place." 

Dane Lang, co-owner of Yarrabee Farms, speaks to the press with his father and co-owner Craig Lang, on their family's farm on August 22, 2018, in Brooklyn, Iowa. Cristhian Rivera, a former employee at the farm, has been charged with the murder of Mollie Tibbetts.

Farmers across the country saw exactly what would happen if the government took an enforcement-only approach after Arizona passed an anti-immigration bill in 2010, leading a half-dozen states to follow suit. The laws, which included the requirement that all businesses use the E-Verify system, sent undocumented immigrants out of those states in droves.

Alabama's immigration law pushed up to 80,000 workers out of the state, according to a study conducted by the University of Alabama. 

Georgia's immigration law led to more than $140 million in unharvested crops in 2011 because so many workers fled the state, according to a report commissioned by the Georgia Fruit and Vegetable Growers Association.

The fleeing workers in Arizona resulted in an average 2 percent drop in the state's gross domestic product every year through 2015, according to an analysis conducted by The Wall Street Journal.

Finding American workers to make up for the shortfall was just as difficult. In Georgia, Gov. Republican Nathan Deal turned to people on probation in 2011, but most walked off the jobs almost immediately.

That same year in North Carolina, as 489,000 people were unemployed statewide, the North Carolina Growers Association listed 6,500 available jobs, but just 268 North Carolinians applied, 163 showed up for work, and only seven finished the season, according to a study by the Partnership for a New American Economy.

The solution, according to farmers, is a nationwide guest-worker program that improves on the current H2A visa program that has been a headache for farmers for decades.

Those visas are designed for temporary, seasonal workers and have been used more frequently in recent years. The number of H2A visas approved has increased from 74,192 in 2013 to 161,583 in 2017, according to State Department data. 

"That doesn't mean it's a great program," he said. "It just means it's the only program."

Boatright said the H2A program is too rigid to accommodate the unpredictable timing of harvests. He said it's overloaded with too many regulations that often require farms to have immigration attorneys on staff just to fill out paperwork. And because the visas cannot be used for year-round workers, Boatright said it makes dairies, nurseries and livestock ranches ineligible.

Chmielenski said his organization, which can successfully pressure Washington by activating its network of thousands of supporters to flood congressional offices with calls, emails and tweets, is willing to consider a tandem bill that includes mandatory E-Verify with improvements to the agricultural guest-worker program. And that, in the end, may be the only way to get a bill through Congress.

"We acknowledge the fact that H2A could be cleaned up," he said. "We're willing to work with them on that and to give them a pool of foreign workers they can tap into when there's not an American worker willing to do that for a decent wage."