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Eggheads is the go-to podcast for egg industry professionals who are interested in leadership and innovation in the egg world. Host Greg Schonefeld explores the evolving world of modern egg farming, from the latest in cage-free innovations and organic certifications to navigating the economics of large-scale production. Whether you're an egg producer, supplier, or involved in poultry genetics, this show provides the insights and expert discussions you need to thrive in the industry. Crack open the science, strategies, and stories behind the egg industry’s biggest challenges and opportunities.
Kyle Farmer:
It doesn't matter who's doing your filings when things are going right, it matters who's doing your filings when things go wrong, and no one wants to imagine the world through that lens, but that lens is very real and it happens all the time.
Greg Schonefeld:
I am Greg Schonefeld and this is Eggheads. We've talked a lot on the show about how hard it can be to find labor for egg producers and in agriculture in general. Well, today's guest has built an entire career out of helping farmers find solutions to that problem.
Kyle Farmer:
After graduating from law school, my wife, who you might know, wanted to move to Iowa and work in a family construction company, which you also might be familiar with.
Greg Schonefeld:
That's Kyle Farmer and full disclosure, his wife is my sister, and that family construction company is Signet, now one of my companies.
Kyle Farmer:
And so we moved up there and then I was unable to locate a job. I notoriously unemployable.
Greg Schonefeld:
But within the agricultural sector, Kyle identified a real need for someone with expertise in labor and immigration law. So instead of waiting on another firm to hire him, he carved out a niche for himself.
Kyle Farmer:
So we went within the agricultural industry and started to help a lot more farmers themselves and building supplies, manufacturers and all those sorts of people because in this world, everyone needs labor and it's hard to find.
Greg Schonefeld:
I'm not talking to Kyle today because he happens to be my brother-in-law, but because he's become a bona fide expert in the field of labor immigration, something that many egg producers heavily rely on to keep their operations humming, but the system can be extremely confusing and the rules can change dramatically depending on the prevailing political winds. So I wanted to get Kyle on today to demystify it all and share some of the different ways the system works and doesn't work when it comes to getting producers the people they need.
In your experience now in agriculture, can you speak, I don't know, generally, to the labor climate and maybe as much about eggs as you can, but just broader agriculture, why are some of these immigration programs you work with needed?
Kyle Farmer:
Sure. Yeah, and I'm happy to talk specifically about eggs too because as you know, I'm a chicken farmer myself.
Greg Schonefeld:
Oh yeah, that's right.
Kyle Farmer:
I've got 14 chickens. I think I started off with 20, but I'm not a great chicken farmer, but I do have eggs.
Greg Schonefeld:
14 is better than 12.
Kyle Farmer:
I probably have 12. Yeah. I think that the biggest misconception that people have with the use of immigration for labor and agriculture is that it's a voluntary thing. The farmers have an option. The construction companies have an option. Our business doesn't just use immigration. We also just place people domestically also that have lawful working status in all sorts of roles. And I've tried with certain jobs and you cannot get people to do them. It doesn't exist, and it's a really common misconception that people are saying, "Hey, well, why don't you just pay people more? They'll go work in some remote area in Iowa and do this really hard job." It's like, no, they're not. If they want to live in Iowa, they could go do construction in Des Moines and then they have more consistent hours, the job's not as hard.
And so farmers kind of get a bad rap because the general public thinks, "They could just pay them more." That's also not how agriculture works. People pretend that the farmers get to control what they sell their commodities for. That's not how that works. They try really hard on managing costs that our farming industry in particular is uniquely efficient if you compare it globally, but they do compete globally. And so the use of immigration in agriculture, it's not a nice to have. It's a must have. They can't live without it. It just doesn't work that way.
Greg Schonefeld:
Some of what I think what you're saying is in general, selling these commodity products is a highly competitive kind of landscape, and just to say that, "Hey, you can pay more," there's that constraint, but there's also the constraint that in a lot of cases, the people just don't exist for these jobs no matter what you pay them.
Kyle Farmer:
Yeah, yeah. They don't exist. I've advertised jobs for extraordinarily high rates, like wages that people would never make in big cities doing construction, for example, and you don't get anyone to apply for it because they don't want the job. I also think that people just don't appreciate farming enough. I don't think that they really understand how important it is that as a country we can feed our own people, that if you become reliant on other countries for feeding your own people, that's a serious national security concern.
We were whining a lot during the pandemic about not manufacturing our own pharmaceuticals. It's like, yeah, no, that's a good thing to complain about and a good thing to remedy. But imagine a world where we also can't feed our own people and our foreign adversaries are the ones that are actually responsible for feeding our populace. It's not a good position to be in as a country, and so you've beat down the farming industry in the United States. It's a serious national security concern, but people don't even acknowledge it.
Greg Schonefeld:
And if we come from that perspective, I mean, what can farmers do today? What immigration tools are available to farmers today that can help alleviate some of their labor pains?
Kyle Farmer:
The H-2A program, which is a temporary or seasonal agricultural visa is a really good one, but it has its limitations. They have access to immigrant labor through what's called the TN visa, which was created by NAFTA and carried over in the USMCA for certain professional level activities. And those are the two main ones that are used in agriculture from a labor perspective.
Greg Schonefeld:
If you look at the H-2A programs, have you seen egg producers or other people who support the egg industry successfully be able to use that program?
Kyle Farmer:
Yeah, they can. It's just a matter ... The interesting thing about the H-2A program is a lot of times farmers in particular, they will see their operations and you'll say, "Hey, the H-2A program is a temporary or seasonal agricultural visa." And they'll say, "Well, I'm busy all the time, so it doesn't work." It's like, okay, hold on a second. Let's dive into this a little bit. Because what you really need to know to know if the H-2A program is applicable is you're busy doing what? Because whenever they're talking about the temporary or seasonal nature of the H-2A visa, what they're really referring to is a specific job opportunity.
Now, there are things that you do in the egg industry that are not temporary or seasonal, and you can't use H-2A for those roles. So let's say that you need someone packaging eggs year round, same volume year round, same number of people year round. Okay, great. It's not a good H-2A program. But there might be some things that you do during certain months of the year that do require additional labor because of things like biosecurity. The risk of disease transmission in the egg industry is significantly more pervasive, starting with the migration of birds south, and then it stays high generally over the course of the winter because diseases spread faster in colder weather, and then it remains high whenever the birds migrate back north. And a lot of times farmers just kind of deal with it, and the way that they deal with it is they just put more work on their existing staff.
But that's actually a pretty good use of the H-2A program is maybe you don't have to add a lot more work to your people, but you could add more people. So things like that. For a farmer to understand how they can use the different programs, you have to know in depth what does the DOL actually mean by these different things and how does that apply to my specific operation, to know if you actually have a job that is temporary or seasonal in nature.
Greg Schonefeld:
So if I understand correctly, maybe there's opportunity for more egg producers to use H-2A, and they've been operating under this assumption that, "Hey, I've got work year round for these people." But maybe they're shifting them in and out of job descriptions, maybe they're working people extra hours during the peak period, and those are some signals that H-2A could be a possible solution for some of those jobs.
Kyle Farmer:
Yeah, you got that exactly right. Another way to phrase it is a lot of times farmers have two separate seasonal jobs that are not the same, but they happen to have one person who's capable of performing both. They've got employee Joey. Joey's out there and he is running his tractor, he is able to run farm equipment and he's got experience running farm equipment, but he grew up on a farm and he always worked on the equipment too. So what does he do during the season? He operates the equipment. During the off season, he does the maintenance work on it, and he does any kind of repair so that it's prepared for the actual farming season. But Joey just happens to be a unique case because he's able to do both of those things when in reality what you actually have there are two separate seasonal jobs.
Greg Schonefeld:
And then another one you've talked about is you mentioned the TN visa as well. Can you talk a little bit about some successful use cases you've seen with that visa and maybe give a little background on the visa first and then talk through that.
Kyle Farmer:
So similar to the H-2A program, it's not numerically capped, and for people that don't know what that means is with certain visas, there is a statutory limit on the number of people that can come in on that visa. The TN visa is not numerically capped. It was created by NAFTA. It was carried over in the USMCA. So the only two countries where it's applicable are Canada and Mexico.
So a lot of times people will come to me and say, "Hey, I've got this really good person from South Africa and they've got a bachelor's degree and blah, blah, blah, and I want them to manage my farm." You can't use TN in that case from South Africa, but we've seen farm managers use them. It's generally higher level people that are using them. From the construction side, we've seen engineers come in that are helping with the buildings and that sort of thing. We use them for all sorts of stuff. They're not seasonal. They are technically temporary. However, you can continue to renew them with the H-1B, for example, which is a similar visa category, but any country's eligible for it, there's a cap to the amount of times you can renew it. You can renew it for six years. With the TN, it's not like that. You can just continue to renew it. We've had people here on TNs for 20 plus years.
Greg Schonefeld:
And I guess it does require the education of some sort, but I understand maybe people with animal science or other backgrounds. Are there other kind of common backgrounds you see on the TN visa?
Kyle Farmer:
Yeah, a lot of animal scientists. Poultry scientist is actually a really common one for the egg industry. There's agronomy roles, there's all sorts of stuff. Engineering can be helpful on a farm too, especially whenever you need someone who can actually understand and diagnose issues on the farm. One of the things that I get asked a lot is, "Okay, I've got this TN person. Can they do X, Y, Z?" When you're going through the TN process, you're telling the state department what the person's going to be doing, and what I always tell people is they need to be doing what's consistent with their job description that you provide to the state department or to the USCIS. And so long as they're doing that, then you're fine. Basically just have them do what you said that they're going to do. And if they were approved on that basis, then you're in a good spot.
Greg Schonefeld:
I just want to pause here for a second to give my own two cents on this because these visa programs have been really important to my own business. We do construction projects all over the country and with H-2As and TNs, we're able to bring the same people back repeatedly, and so they get to build experience and we get to really develop a strong working relationship. And what Kyle said about it being hard to find domestic labor to fill these jobs, in my experience, that's definitely right. We're very often out in remote areas and with other construction gigs, you have the opportunity to go home every night, and that's just something we really can't offer in our line of work. So those two programs, specifically, TN and H-2A, really make it possible for us to do what we do. But I wanted to know from Kyle, what other routes exist to bring people in from abroad?
Kyle Farmer:
So another one that comes to mind is what's called an EB-3 unskilled applications. EB-3 unskilled applications have become more difficult just because of the time that it takes. I mean, it takes five to seven years. The way I like to think about that is, it's kind of a stopgap because it's going to take a long time. You have to go into it understanding this is going to take a long time, but there are roles that farmers can look at and say, "I always have a hard time with this." Maybe it's something like truck driving, maybe it's something in the actual production process that's not temporary, not seasonal, maybe it's not a professional level activity, and they just want it to stop at some point. And so they get in line for that. We've filed hundreds of those before and it's great whenever it finally comes through, it just takes forever.
Another visa category that I've seen used, this one's not a labor visa, but there's obviously some employer benefit to it, is what's called a J-1, it's a cultural exchange visa. That one, again, it's not a labor visa, so it's different in that they go through basically a training program, but they do have a host employer that will walk them through the training program, and so it can be helpful for everyone.
Greg Schonefeld:
So the EB-3, that's the perm visa, right?
Kyle Farmer:
Yeah, that's right. It's a green card filing. I very rarely see people use that as their only visa category. Usually what they're doing is they have someone that's coming up on an H-2A role, for example, maybe they're coming up and they're working in their row crop operations, but they want them working in a non-seasonal job, a non-temporary job as someone who's been really good, really loyal for a long time. And so they'll say, "Okay, in the meantime, you can work on this H-2A job, but whenever your green card comes available, I'm going to move you over into this role. And it's great for the person that's coming over on the H-2A, because they've got an employer with just as much buy-in on the company as a company has on the individual. And so it's really great for both parties, but it does take a long time.
Greg Schonefeld:
So you've given us a good picture of what the problem is, what are some of the solutions. What role does an immigration attorney play in the process, or how do you work with your clients?
Kyle Farmer:
The way that I work with my clients is I talk to them about their operations broadly and then narrow in on which puzzle piece fits where. That's why we've built out so many different options for people, from locating people domestically that have lawful working status to green card filings, H-2A filings, TNs. We've built a toolbox so that people can come to us with labor needs and we can tell them what's the applicable solution for that particular need. So really diving deep on their operations and then seeing what's the applicable category for filling whatever that labor shortage is.
Greg Schonefeld:
I know over the years you've faced different challenges with different programs. You've been able to fight back on certain things from your seat as an immigration attorney. Is there any particular case that stands out that you've handled and been able to win or make progress?
Kyle Farmer:
Several of them stand out, which is part of the fun. A few years ago, the Department of Labor got a ruling in their favor for an ag construction company. It wasn't one of our clients, and it was a company that was performing framework on grain bins. I think the company probably did have a temporary or seasonal need because the type of work they were performing, the vast majority of it occurs in the spring, summer and fall, and you can't do a lot of it in the winter because it's too freaking cold. But the petitioner didn't do a good job of explaining that, and so they appealed the case. The Department of Labor ended up winning on the appeal, and the Department of Labor then tried to take that ruling and expand it across all construction companies. And so they started to deny a bunch of H-2A construction companies and citing this case.
And so we ended up explaining to the Department of Labor in other ways, because it's not just seasonal because you can't pour concrete, for example, in certain weather conditions. It's also seasonal for disease transmission reasons and all sorts of other things. And so we further explained it to the Department of Labor, and then the Department of Labor ended up denying a bunch of our cases, and then we ended up appealing a bunch of those denials and winning on all the appeals. And so we won a lot of appeals that way.
Another one that stands out is, I remember a few years ago the Department of Labor just basically had enough of people extending because of COVID, H-2A applications. But in the construction industry in particular, COVID created a lot of problems that rationally required an extension. There's three elements for an extension in the H-2A world. It has to be supported in writing, it has to be no fault of the employer, and it has to be not reasonably foreseeable at the time of the application. And so we proved all three elements and had nine extensions in one year because there was a bunch of supply chain issues with the delivery of equipment onto farms. And so we ended up appealing all those extension denials and we won those too.
It doesn't matter who's doing your filings when things are going right, it matters who's doing your filings when things go wrong, and no one wants to imagine the world through that lens, but that lens is very real, and it happens all the time.
Greg Schonefeld:
I feel like setbacks such as extension denials or other things going wrong in the process often gets attributed to politics. Almost every time there's an administration change, I get questioned as an H-2A user. Something like, "Hey, do you expect to still be able to use the program now that there's a new president in office?" So I wanted to get Kyle's take as someone who does this for a living. How much of an impact does politics really have one way or the other?
What's your take on politics and immigration and this idea that maybe one political party is better than the other? Why might that statement be an oversimplification?
Kyle Farmer:
Yeah, I mean, it's definitely an oversimplification. The reality is each party has their own incentive structure for supporting different types of immigration and being hard on other types of immigration. I can tell you from experience that Democratic administrations tend to be much harder on the use of programs like the H-2A program, whereas Republicans tend to not be as hard on them. Even the Trump administration, which everyone thinks is notoriously hard on immigration, they haven't been, at least for these programs, I think that they've had some strong enforcement.
But the different incentive structures and the different means of enforcement by both political parties end up impacting farmers. Because if you are a farmer, and let's say that there is a ... With the Trump administration, there's a strong push for deportations and for removing people without lawful working status, whereas with the Democrats there wasn't. Well, a lot of farmers have a lot of illegal people working for them, and they have for the last 20 years, and so they become a lot more fearful of that. But on the H-2A side or the TN side, for example, the reins get loosened a little bit, and then whenever there's a Democrat in office, a lot of times the enforcement on the undocumented labor is not as strong, but it's stronger on the H-2A and TN side.
So it all ends up impacting farmers one way or the other. So there is a tilting of the scales one way or the other with administrative changes, but I wouldn't say that there's one party that just is the one that is going to help the farmers, and it's only that party. A lot of times it's just the particular individual, what's their incentive structure for immigration?
Greg Schonefeld:
So specifically in the current administration, are there any changes you've seen?
Kyle Farmer:
Yeah, from the H-2A side, they released a interim final rule that did something that was desperately needed in the H-2A program. The Biden administration released a rule that ended up getting an injunction on it, but it changed the wage rate methodology and it was a complete mess. In the Biden administration's defense, that portion of that rule was originally introduced by the first Trump administration, and then it got an injunction and then they took it ... But there was a good part to the initial Trump version of that rule. They took out the good part, left in the bad part, tried it, it got an injunction, and then the Trump administration just released an interim final rule that made for basically a wage adjustment for H-2A workers because the employer is providing housing to those workers. That helps a lot.
We were talking earlier about the cost inputs for farmers and what it does to their ability to farm. All those sorts of incremental changes make a big difference. Pre-Biden administration, all H-2A workers, regardless of occupation, were paid what's called the adverse effective wage rate. But what they did is they ended up separating those between what they call the big six, which is traditional agricultural roles, think of agricultural equipment operators, crop pickers, those sorts of things, and they separated those from other jobs that they think would have a higher wage rate; truck drivers, construction workers, supervisors, those sorts of things. And they separated out how the wage rates are determined for those two roles.
So the Trump administration didn't completely roll that back. They kept that in place, but they separated it based off of levels and they applied the housing adjustment thing. So I think that those are both really, really good.
Greg Schonefeld:
Well, I guess given that recent change, I mean if you kind of held the keys and you could make one simple change to the immigration system to make it, let's say easier to navigate or just better for workers and employees, what would that change be? Just one.
Kyle Farmer:
I could only make one change, it would be to remove the temporary or seasonal requirement from H-2A. If you did that one thing, it would make a huge difference for particularly livestock and poultry producers.
Greg Schonefeld:
Yeah. And why do you think that would be a good change?
Kyle Farmer:
Because there's a lot of roles on farms that there's not a good immigration option for. So if you're a dairy and you milk cows, the milking of the cows, there's not a good immigration option for that. And the proposed legislation that they've had before had a numerical cap, and so it wouldn't have solved the problem, and it would've created a huge mess in H-2A.
The Farm Workforce Modernization Act of 2023 and 2019 were terrible, and generally livestock farmers hate whenever I say that because they thought it was good. It was awful, and I told everyone that. It was a garbage bill that would've created way more problems down the road than it solved, and they would've been selling their one opportunity for reform for something that sucked. If you just made the modification of removing the temporary or seasonal aspect of it, or even just the seasonal aspect of it, you would make it to where the livestock farmers that desperately need legal labor for roles that don't have a legal avenue right now would have an option, and it wouldn't be numerically capped still.
You could test the labor market every year to make sure it's not adversely affecting US wages. I think that that's great. No one wants to negatively adversely affect US wages or working conditions or anything like that. But the reality is that a lot of times farmers are put with their back against the wall of three bad options. Do I not fill this role that I desperately need, or do I do it myself? Do I fill it wrong by misusing immigration? Or do I fill it with illegal labor? Those are their only three options. We can pretend that there's another option, but we'd be lying to ourselves. But if you removed the seasonal aspect of H-2A, even if it was industry specific or occupation specific, it would go a really long way.
Greg Schonefeld:
I'm on board with that one. If you were going to make a few more, what would those be?
Kyle Farmer:
I would open up a lot more green card filings for agricultural farmers. I would put some sort of cap on the wage rate increases, recognizing that it's a globally competitive industry. I would make the application process easier for farmers so that it doesn't take so long. And yeah, I think you do a lot of those things, it would go a long way.
Greg Schonefeld:
Yep. You made the comment to just generally help make it more possible for people to come in the front door than come in by their own means.
Kyle Farmer:
Yeah, I mean, that goes down to my point of if you're the farmer and you're choosing between three things, they're either I'm doing this job myself or it's not getting done; I'm misusing immigration and therefore jeopardizing my own compliance risk of huge fines, risk of debarment from programs, risk of public humiliation; or I'm hiring someone that's illegal to do this job. It leaves them in a terrible spot. There has to be a better option for these people, and there's just not right now.
Greg Schonefeld:
A side note that comes to mind is, I mean, there's been a lot of talk in the news about ICE raids, but I haven't heard that much about those hitting farms, at least not yet. I mean, I'm not someone who pays super close attention to the news, so maybe I'm missing something, but have those so far avoided farms?
Kyle Farmer:
So the administration early on was actually hitting farms pretty hard. Then there was a lot of backlash from it from the farmers because they were kind of complaining about the same thing that I'm complaining about right now. And the people on these farms, these aren't cartel members that are milking cows, I promise you. They're just people that have been here forever. So they were, and then the administration actually said something about leaving farms alone. I can't remember exactly what it was.
Greg Schonefeld:
There seems to be a recognition that that is really, practically speaking how the work gets done. It seems like for decades, you just kind of look the other way and you don't solve it. It just seems like there's been no good solution. And I mean, the last thing any farmer wants to do is break a rule or break the law or whatever, but at the end of the day, not getting the work done is not an option. And I guess I've never had firsthand experience, but I would imagine very difficult to hire the people you need.
Kyle Farmer:
Yeah, yeah, it's almost impossible.
Greg Schonefeld:
That was Kyle Farmer giving us a really helpful breakdown of the different visa programs available to companies in the ag sector and the reasons why they're necessary for meeting labor needs. As Kyle said, often when farmers are looking for labor, they're faced with difficult decisions. And I think making the system less confusing and making it easier for farmers to hire people from abroad to fill positions they can't hire for domestically would be a huge benefit to both the industry and the workers looking to fill those positions. So having covered labor issues, labor solutions, and the politics behind it all, just one hard-hitting question remains. Kyle, how do you prefer your eggs?
Kyle Farmer:
Scrambled.
Greg Schonefeld:
Scrambled?
Kyle Farmer:
Have you ever had anyone answer that question say raw?
Greg Schonefeld:
Never.
Kyle Farmer:
Okay. I like them raw. I like them raw. I don't even blend them. I just slurp them.
Greg Schonefeld:
Good. We'll go with that version. You can be the first.
Kyle Farmer:
What a terrible answer my first one was.
Greg Schonefeld:
If you enjoyed this episode, please share it with a colleague or friend. Word of mouth really helps us to grow the show. And to make sure you don't miss an episode, follow us on Spotify or Apple Podcasts. Until next time, I'm Greg Schonefeld and we'll talk to you soon.