Issue Update: Immigration Reform

Immigration Reform Begins to Move in the Senate

Historically, a primary issue for the agricultural sector has been the ability to determine the legal status of prospective employees – a variable that has proven to be a challenge, if not impossible. Employers are strictly limited in what they may ask prospective employees in determining their authorization to work and could be subject to a Justice Department investigation or lawsuit for unlawful discrimination if they request more or different documents than those allowed by law.

Despite advancements in technology, modern agriculture remains labor intensive.  It is also conducted in all seasons and is often transitory.  As farmers and ranchers have continued to face a shortage of workers who are willing and able to work on farms and in fields, they have had to do so within the context of both labor market demands and the overall political environment.    Not only must agricultural employers attract sufficient numbers of competent and able employees in order to sustain and enhance production, they must continue meeting the needs of a growing world population.

Within the construct of the recently introduced Border Security, Economic Opportunity and Immigration Modernization Act (S. 744) are a number of provisions supported by the agriculture sector.  The Senate legislation aims to tighten border security, increase available visas for foreign workers, and increase penalties for U.S. employers who knowingly hire undocumented workers.  The full text of S. 744 can be accessed by visiting http://thomas.loc.gov/cgi-bin/thomas.

Under the proposed Senate legislation, “agriculture” is defined as: “includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities, the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm. Term includes the handling, planting, drying packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state.”

The bill includes a new “blue card” program for experienced farm workers and a new version of the current agricultural worker visa program.  The new agricultural worker program would establish two work options: a portable, at-will employment-based visa and a contract-based visa program.  Undocumented farm workers would be eligible to obtain legal status via the “blue card” program for experienced farm workers, as well as the revised version of the current agricultural worker visa program.

Farm workers who fulfill blue card work requirements, pay all their taxes, have not been convicted of a felony or violent misdemeanor, and who pay a $400 fee would be eligible for the current green card.  Those work requirements include performing at least 5 years of agricultural employment for at least 100 work days per year, or performing at least 3 years of agricultural employment for at least 150 work days per year.

Employers of workers under the program would have to register with the USDA as a designated agricultural employer.  In addition, workers who become unemployed for more than 60 consecutive days would lose their status and would have to depart from the United States.

The H-2A program would sunset one year after the new visa program is enacted. The new program, administered by the United States Department of Agriculture (USDA), would provide three-year visas.

The atmosphere surrounding the issue of immigration reform, however, continues to be politically charged and the intricate dance of navigating differing agendas – policymakers, employers, and unions – will remain a challenge.

One provision that continues to be a cause for concern is a requirement that all employers utilize the government-run, Internet-based federal work verification program known as E-Verify.  Over a five-year phase-in period every non-citizen would be required to show his or her “biometric work authorization card,” or his or her “biometric green card.”  Employers with more than 5,000 employees would be phased in within two years, more than 500 employees would be phased in within three years, and all employers, including agricultural employers would be phased in within four years.

Operated by the United States Citizenship and Immigration Services (USCIS), the E-Verify system compares information provided by job applicants with databases compiled by the Department of Homeland Security (DHS) and the Social Security Administration (SSA) to let employers quickly know if the applicant has the right to work in the United States.

Although the system is supposed to guard against the hiring of undocumented immigrants, concerns have been raised as to its reliability For example, during a recent interview with reporters, United States Senator Al Franken (D – MN) noted that the rate of mistakes by E-Verify – approximately 1 in 140 false positives – is too high to impose on small businesses, especially the Minnesota dairy farms that rely on immigrant labor.

Although concerns persist that, due to malfunctions in the identity verification process legal workers could be denied jobs (thereby subjecting employers to lawsuits), a complete exemption from E-Verify for small businesses appears unlikely.  Although confirmation of legal status when hiring farm workers is now optional, it is nearly impossible to envision a scenario where comprehensive immigration reform moves forward with an exemption of small businesses.

Whereas the majority of attention has been on the Senate, there are two immigration “vehicles” that have been moving in the United States House of Representatives.  A bipartisan working group is attempting to finalize its “comprehensive” proposal but House Judiciary Chairman Bob Goodlatte (R – VA), whose committee has jurisdiction in relation to immigration reform, has a different view as to how best to proceed.

The preference of Mr. Goodlatte is for the House to follow “regular order” as the chamber strives to advance immigration reform – thereby ensuring that his committee not only retains its jurisdictional prerogative but that members have an opportunity to assist in crafting immigration reform legislation.

During a recent interview with Congressional Quarterly, Mr. Goodlatte noted that “we have a lot of people in this Congress who are not part of that little group, and they all need to have input in this process, so we’re making sure that happens.”  He added that “we’re encouraging the House group to reach agreement, and we will benefit from their product but no decision’s been made about how we pull it all together.”

And what of Speaker of the House John Boehner?  Although there has been no explicit commitment from Mr. Boehner, members and aides close to the House bipartisan working group appear confident that the Speaker secretly has some level of ownership or authorization of the bipartisan effort.

Copyright © 2013 RDL & Associates, LLC.  All rights reserved.

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