California Ag Network

Tag: Immigration Policy

  • Dairy Orgs Praise H-2A Guidance for Dairy Operations

    The International Dairy Foods Association (IDFA) and the National Milk Producers Federation (NMPF) have released statements supporting the Trump Administration’s recent guidance clarifying how dairy operations my use the H-2A temporary agricultural worker program when they can demonstrate a qualifying temporary or seasonal labor need under existing laws.

    “IDFA appreciates President Trump’s commitment to advancing a workforce solution that recognizes the unique needs of America’s dairy industry,” IDFA President and CEO Michael Dykes said on June 17. “Today’s announcement makes the H-2A temporary agricultural worker program a more viable tool for dairy producers, who have had no way to participate in a program designed primarily for seasonal agriculture.”

    “Dairy farmers appreciate the new clarification released by the Trump administration outlining how dairy operations may use the H-2A agricultural worker program. The dairy industry has long sought access to the H-2A program, and this guidance will help open the door for dairies to begin using this program,” said NMPF President and CEO Gregg Doud. “We applaud secretaries Rollins and Mullin and acting Secretary Sonderling for their proactive leadership on this issue and look forward to learning more about these important new changes.”

    In its guidance, U.S. Citizenship and Immigration Services (USCIS) clarified that the policy memorandum in no way imposes new obligations on employers submitting H-2A petitions, ensuring the USCIS will handle petitions on a case-by-case basis.

    “NMPF pledges to work with both Congress and the administration to secure long-term certainty for the dairy workforce, including solutions to transition to H-2A, which will ensure that dairies across the nation are set up to thrive, boosting rural communities and providing Americans and the world with high-quality, nutritious products,” Doud said.

  • California Farm Bureau Seeks Alternative Immigration Solution

    Sacramento, Calif., (February 28, 2018) – As the U.S. House of Representatives continues discussion on proposed immigration legislation, the California Farm Bureau Federation says it cannot support a part of the bill that addresses agricultural employees.

    Now before Congress, H.R. 4760, the Securing America’s Future Act, would fund a border wall and address internal immigration enforcement and the Deferred Action for Childhood Arrivals program. It also includes an Agricultural Guestworker Act, or AG Act, which would create a new agricultural visa program.

    CFBF President Jamie Johansson said the AG Act, in its current form, contains a number of features that would harm the current immigrant employees on whom California farms and ranches depend. In addition, it would mandate use of the E-Verify electronic workplace-eligibility system, which could affect a large proportion of current agricultural employees.

    “As now written, the AG Act just wouldn’t work for California farms and ranches,” Johansson said. “There’s a longstanding need to create a workable temporary-visa program for agriculture that provides greater stability and opportunities for agricultural employees and their families. The AG Act would cause too much disruption for our employees and our communities.”

    Johansson said CFBF and other organizations have offered a number of recommendations for creating a more practical and flexible program to allow people from other countries to enter the U.S. to work on farms and ranches.

    “We know the American Farm Bureau and other national agricultural organizations have decided to support the AG Act, and they have every right to do so,” Johansson said. “But as the largest agricultural organization in the largest agricultural state, we must advocate for a solution that works for our members and their employees. For California farmers and ranchers, the combination of the AG Act and E-Verify would actually worsen chronic agricultural employee shortages. We will press for a better solution.”

  • Immigration Worksite Enforcement Guidance

    Modesto, Calif., (February 1, 2018) – This memorandum provides advice and guidance concerning the implementation of AB 450, and its integration under federal immigration laws. To understand the significance of the new law, and the public threats being made by state officials against employers, employers must understand the process for enforcement of immigration laws. There are two primary methods used by ICE for worksite enforcement, raids and audits.

    Raids: In a raid, ICE will typically appear with a search warrant in hand, and a significant law enforcement presence to make arrests. The employer will have an opportunity to verify and receive a copy of the warrant, and is entitled to an inventory of any records or evidence seized, but the employer cannot interfere with execution of the warrant.

    I-9 Audit: An audit is typically conducted by an ICE employee who has only civil authority, and typically lacks the authority to issue warrants or make arrests. These audits are conducted under federal regulations and are limited to I-9s and their supporting documents. ICE must provide a 3 day written notice, referred to as a “Notice of Inspection,” and will conduct the audit 72 hours later. As will be discussed below, AB 450 is largely a piece of political grandstanding, and for the most part should not present a significant threat to employers who understand its provisions.

    Effective January 1, 2018, Gov. Brown signed AB 450 which does the following:

    • Requires employers to ask immigration agents for a warrant before granting access to a worksite.

    Legal Guidance: Remember, immigration agents almost never show up and demand broad access without a warrant. When they do so, they will likely have a justification such as hot pursuit or some other emergency circumstance that eliminates the need for a warrant, and employer consent is a non-issue. The odds are very low that an employer will ever face the threat of a warrantless search by ICE that relies on employer consent for access. If such a circumstance arises, the employer should express a desire to cooperate, but a need to avoid fines under state law, and should ask the agent to obtain a subpoena or warrant.

    • Prevents employers from voluntarily sharing confidential employee information without a subpoena.

    Legal Guidance: Under existing law, employers must generally avoid sharing confidential information without a subpoena. Typically, ICE does not need subpoenas, as the documents they ordinarily seek are I-9s, which they are entitled to audit. If ICE has a broader document request, express a desire to cooperate, explain the state law, and ask them to provide a subpoena.

    • Requires employers to notify their workers before a federal audit of employee records.
      Legal Guidance: This is the most dangerous part of the law, because it can trigger employee flight that damages the business, and can needlessly frighten employees. This requirement will be discussed in further detail below.
    • Gives the attorney general and labor commissioner exclusive authority to enforce new provisions of state labor laws.
    • Prohibits employers from re-verifying information on employment verification forms, unless compelled to by federal law.

    Legal Guidance: Employers can only re-verify under limited circumstances already, and federal law outlines the circumstances in which they can do so.

    • At this time, only the state can enforce these laws, and the bill does not authorize private lawsuits.

    AB 450 implements these prohibitions as follows:

    Sec on 7285.1 is added to the Government Code:

    1. Unless required by federal law, an employer cannot voluntarily allow immigration to enter any nonpublic area of the workplace. This does not apply if immigration provides a judicial warrant or if they enter without consent.
    2. If section (a) above is violated by employer or agent, employer will be subject to civil penalty of $2,000 to $5,000 for its first offense. Subsequent viola on fines can be between $5k and $10k.
    3. Employer can talk to immigration in a nonpublic area, where employees are not present and no consent is given for immigration to search nonpublic area, for the purpose of verifying whether or not enforcement agent has a judicial warrant.

    Legal Guidance: As discussed above, it is exceedingly rare for ICE depend upon employer consent to gain worksite access. However, a constructive dialogue with the ICE agent will always be the best approach. Employers should be ready to express the desire to cooperate, but the need to avoid state fines, and should avoid antagonizing ICE agents.

    Sec on 7285.2 is added to the Government Code:

    1. Except as required by federal law, and except for where Notice of Inspection has been given to the employer for eligibility verification, Employer cannot provide voluntary consent for immigration to have access to employee records without a subpoena or judicial warrant. Does not prohibit employer from challenging validity of subpoena or warrant in court.

    Legal Guidance: Again, it is rare for ICE to request documents without a subpoena or a Notice of Inspection. However, should such circumstances arise, express the desire to cooperate but ask the agency to serve a subpoena.

    1. Does not apply to I-9 verification forms and other documents for which Notice of Inspection has been provided to employer.

    Legal Guidance: I-9 audits remain the most likely law enforcement activity most employers will encounter, and they can only be conducted pursuant to a Notice of Inspection.

    1. If voluntary consent by employer is given, the employer will be subject to civil penalty of $2,000 to $5,000 for its first offense. Subsequent violation fines can be between $5k and $10k. Again, this will not apply if the federal agency takes access over the employer’s objection.

    Sec on 7285.3 is added to the Gov’t Code: Employers may still enroll in E-Verify.

    Sec on 90.2 is added to the Labor Code:

    1. Notice of Inspection: Except as otherwise required by federal law, within 72 hours of receipt of inspection notice, the employer must provide a written notice to each current employee of any I-9 verification or employment records inspections (can be posted where employer normally posts employment-related notices to employees). Notices must contain the following: Name of immigration agency; Date employer received notice of inspection; Nature of the inspection; and Copy of the Notice of Inspection (A. On or before 7/01/2018, the Labor Commissioner will have a template posting for employers available on its website. B. Upon reasonable request, employer must give affected employee copy of the Notice of Inspection.)

    Legal Guidance: This notice requirement is problematic, as it may create fear and cause loss of employees who cannot be detained or arrested by the auditor. Historically, I-9 audits have not resulted in wholesale deportation of employees. Employers facing the audit must make the posting or face penalties, and there appears to be no basis to avoid it. However, employees often do not look at the workplace postings, which may help minimize the impact. Concerned employers can word the notice to advise employees that it has valid I-9s on all of them, and is confident that there are not violations of immigration law. But realistically, employers should expect the notice to cost them employees.

    1. Inspection Results: Except as otherwise required by federal law, within 72 hours of receipt of inspection results, employer must provide an individualized written notice to each affected employee (an employee identified by immigration who may lack work authorization or whose authorization documents may have deficiencies) containing the individualized results and any employer/employee obligations arising from said results. Individualized Employee Notices must contain the following:
    • List deficiencies or other items identified in the results related to the employee; – Time period for corrections;
    • Time/date of any meeting with the employer to correct deficiencies;
    • Notice to employee re: right to representation during meeting with employer.

    Legal Guidance: This is a largely meaningless requirement. If ICE conducts an I-9 audit and finds one or more workers to be undocumented, they will order that the employer immediately terminate the employment. Written notice will be required, but it seems unlikely that many scenarios will arise that will enable the worker to resolve the problem, at least in the short term.

    1. There is a civil penalty of $2,000 to $5,000 for its first offense. Subsequent violation fines can be between $5k and $10k. Doesn’t apply if immigration directs or requests that no notice be provided to an employee.

    Sec on 1019.2 is added to the Labor Code:

    1. Employer shall not reverify employment eligibility of a current employee, except when required under federal law.
    2. Penalty for violations are up to $10,000.

    CONCLUSION: The most critical aspect of immigration compliance strategies for employers remains the I-9 form. Especially in the current environment, the employer’s best opportunity to avoid significant penalties, including criminal consequences, will be ensured that it properly completes the I-9 for each and every employee. Even if it is discovered that an employee is undocumented, an employer whose I-9 practices are strong can avoid liability. Employers should train all personnel involved in hiring on I-9 compliance, and should conduct internal I-9 audits as soon as possible to ensure compliance.

    By Anthony Raimondo, Esq., Industry Expert

  • US Farmers Need Sound Immigration Policy For Agricultural Workforce

    Washington, D. C., (January 26, 2018) – In the United States, as in many prosperous nations, foreign workers play a critical role in the production of our nation’s food supply. As Congress struggles with the contentious issue of illegal immigration, it is important that legislators consider the disastrous consequence if no workers show up to grow, harvest and ship our nation’s fruits and vegetables, even if only for one season.

    If our president, senators and congressmen are willing to consider the needs of American farmers — and the importance of sustaining a domestic food supply — in their deliberations over immigration policy, the strategy they develop quite possibly could end illegal immigration altogether.

    During my 16-year term as a congressman representing California’s agriculturally diverse San Joaquin Valley, I sought to address the labor needs of America’s specialty crop farmers. I co-authored H.R. 3142 (2003), H.R. 884 (2005), H.R. 371 (2007), and H.R. 2414 (2009), and championed initiatives that would end illegal immigration while protecting farmers. This can happen only by strengthening border security, implementing E-verify (an electronic employment verification system), allowing foreign workers to come and go with the season, and permitting those who are otherwise law-abiding to continue their contribution in food production.

    Today, as an executive for a California-based agricultural trade association (our growers, packers and shippers help produce most of our nation’s domestically grown fruits) I am again confronted with the ongoing difficulties of ensuring a stable, legal workforce in the face of our government’s failed immigration policies. The challenge remains the same for American agriculture: bring an end to illegal immigration and do no harm to our domestic food supply.

    In the past, most foreign worker programs originated from the executive branch of government as treaties. Some of those treaties became legislated programs, such as H2A. In the West, the Bracero program was negotiated with Mexico to address agricultural labor needs, until its termination in the 1960s.

    The border was open for migrant workers to cross to harvest crops as they ripened; generally, workers returned to Mexico when the growing season ended. However, as border enforcement increased over the years, so did the dangers and expense of crossing the border. As a result, many workers remain in the United States. Now, most agricultural labor in the western United States is unauthorized residents — estimated at 400,000 in California and 800,000 nationally.

    So, while every American should support the immediate removal of dangerous and violent criminals, a majority of these immigrants crossed the border as poor and downtrodden souls.  The idea of immigrating by the letter of the law under desperate circumstances seems like ivory-tower semantics, especially in the absence of robust border security and a legitimate foreign worker agreement.

    In this, the United States shares the blame of enabling illegal immigration along with those who crossed illegally. It is those immigrants that specialty crop agriculture cannot survive without, even for one year, while waiting for a new guest worker program and tighter border security.

    Since the annulment of the Bracero program, the agricultural workforce issue has not been adequately addressed. Sound immigration policy is mired down in the Beltway swamp of politics. In our partisan Congress, anything but border control and mass deportation is amnesty to some, while open borders and a pathway to citizenship seem perfectly acceptable to others. Fifty years of congressional debate has produced nothing.

    Timothy J. Kane, JP Conte Fellow in Immigration Studies at the Hoover Institution at Stanford University, has it right when he says, “The immigration quagmire in Congress may be a consequence of misplaced authority. Is immigration a domestic policy or a foreign policy? A purely legislative, domestic approach has simply not worked.” Indeed, the legislative branch will need help from the president, who could negotiate with foreign partners while working with Congress to end illegal immigration.

    Through a diplomatic agreement such as a treaty, trade or executive agreement, President Trump could break the immigration impasse and provide the farm sector the assurance of an uninterrupted supply of labor while effective border control is put in place. On a parallel track, while Congress considers strengthening border security, the president could negotiate an agreement with foreign countries, resulting in conditional legal status for qualifying farm workers residing in the United States.

    There are benefits to this strategy. It could:

    • Eliminate incentive for hiring undocumented individuals by requiring use of a federal employment verification system (E-Verify);
    • Serve as a blueprint for other industries that, to a lesser degree, depend upon a foreign labor supply;
    • Secure cooperation with Mexico and/or other nations to make sure workers fulfill their obligations;
    • Include a fee to address program administration and border security priorities;
    • Specify immigration enforcement action, including deportation, against foreign nationals failing to qualify or refusing to participate.

    We must use a scalpel, not a hatchet, to end illegal immigration and protect the U.S. food supply. The combination of an agreement from the executive branch, E-Verify, and strong border enforcement from Congress could do just that. Now is the time to take a fresh approach to immigration reform, starting with agricultural labor.

    George Radanovich is a former Republican U.S. representative for California’s 19th District, serving from 1995 to 2011. He is president of the California Fresh Fruit Association, a voluntary, nonprofit agricultural trade association. Reach him at gradanovich@cafreshfruit.com.