FJ Blog

Friday, 20 November 2015

On One Year Anniversary of the President’s Executive Action, Immigrants Wait for Relief

On November 20, 2014, in response to strong organizing and calls for relief by the immigrants’ rights community, President Obama announced a series of administrative actions aimed at addressing our broken immigration system. Farmworker Justice is deeply disappointed that two key actions, the creation of the DAPA (Deferred Action for Parents of Americans) program and expansion of the DACA (expanded Deferred Action for Childhood Arrivals) program, remain in limbo. One year later, millions of potentially eligible families are still waiting for the relief that they need to live in peace, free from the fear of deportation, and to contribute more fully to their communities.

Today we moved one step closer to resolution of the Texas v. US lawsuit with the Department of Justice filing its petition for review in the Supreme Court. The Supreme Court may choose whether or not to review the 5th Circuit Court of Appeals decision upholding the district court’s injunction (order) blocking expanded DACA and DAPA. The Texas v. U.S. lawsuit against the Obama Administration’s DAPA and expanded DACA programs and the ensuing injunction reflects judicial intervention in a political dispute between the Executive Branch and states that disagree with the President’s immigration policy. Farmworker Justice believes the injunction was issued in error and that the ongoing delays perpetuate our terribly broken, inhumane immigration system and stop the federal government from exercising its proper authority. We commend the Department of Justice for its prompt action to seek review of this case in the Supreme Court and we hope the Court will swiftly accept and rule on the case. Farmworker Justice participated in an amicus curiae brief to the Fifth Circuit Court of Appeals and plans to do so for the Supreme Court case as well. We are optimistic that the Supreme Court will rule with the Administration.

DAPA and expanded DACA are vitally important to farmworker families, their communities and the agricultural system. Together, the programs could provide relief to an estimated 700,000 farmworkers and their family members. At least half the farm labor force is undocumented, which contributes to the low wages and labor abuses in the fields. With protection against the constant fear of deportation, farmworkers and other aspiring Americans will be empowered in their workplaces and communities.

Jaime Diaz’s story, published in a Miami Herald op-ed last year, provides just one example of a farmworker whose family could benefit from DAPA. Jaime and his wife have been cultivating and harvesting crops for some 20 years in the United States. With DAPA for Jaime and his wife, Jaime’s family would feel secure and his children would no longer have to fear the police as agents of family separation via deportation. Jaime and his wife and others like them feed us and benefit our economy; they deserve better.

Enforcement Priorities
One successful aspect of the administrative relief is the Department of Homeland Security’s memo that outlines new immigration enforcement priorities. Much work still needs to be done to make sure that the guidelines are followed by enforcement officers and careful consideration is given to exercise prosecutorial discretion in individual cases.

Administrative Action Needed to Curtail Retaliation Against Immigrant Workers

Farmworker Justice joins other allies in continuing to push for workers’ rights by supporting a roadmap to citizenship and urging the Administration to fulfill its goal of “protect[ing] all workers from exploitation and workers’ rights violations, regardless of immigration status.” To support the latter goal, President Obama’s administrative actions included the creation of the Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws (“Interagency Working Group”).

The Interagency Working Group’s tasks include the important objective of “strengthen[ing] processes for staying the removal of, and providing temporary work authorization for, undocumented workers asserting workplace claims and for cases in which a workplace investigation or proceeding is ongoing.” While Farmworker Justice and other groups have participated in two stakeholder sessions, we still await concrete actions addressing these issues. Additionally, we hope that the Administration will issue memorandums of understanding between DHS and various federal and state government agencies, such as the NLRB, EEOC, and California’s ALRB.

We are disappointed at the lack of progress on these actions. Meanwhile, workers who seek to improve their working conditions continue to face threats of immigration enforcement in the workplace. In a meatpacking plant in Illinois, ICE conducted an investigation and raid while workers were in the midst of negotiating a new union contract. More about UNITE HERE!’s campaign on behalf of these workers can be found here.

Integral to democracy and human rights is the protection of all workers’ rights. And when some workers at an employer can be intimidated by threats of immigration enforcement, all workers at that employer can lose bargaining power. We urge the Obama Administration to use its remaining year in office to improve protections and establish clear procedures to encourage immigrant workers to exercise their workplace rights and ensure that they are protected from retaliation when they do so. This is extremely important in agriculture where the majority of workers are undocumented.

On this one-year anniversary of President Obama’s executive action on immigration groups across the country are engaged in actions to call for immigration relief and to make clear this is a battle that will continue until we have won immigration reform with a path to citizenship for the 11 million aspiring Americans. For more information on events in your area, please check the Alliance for Citizenship webpage:


by Megan Horn
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Tuesday, 10 November 2015

Yesterday, the Fifth Circuit Court of Appeals issued its decision in Texas v. US, upholding the lower court’s order blocking the government from implementing DAPA and expanded DACA. One of the three judges, Judge Carolyn King, dissented from the majority and issued an opinion stating, among other things, that the DAPA and expanded DACA memo articulates an exercise of prosecutorial discretion that is not reviewable by the courts and that the case should therefore be dismissed. She also disagreed with much of the reasoning in the majority and district court opinions. Though disappointing, the ruling was not unexpected. However, there is a much better chance that the US Government could win at the Supreme Court. A press release from the Department of Justice indicates that they will appeal the case to the Supreme Court. The prompt decision to appeal increases the chance that the case will be heard by the Supreme Court this term, if the Supreme Court grants certiorari (agrees to review the case). However, because it is already late to make it onto the docket for this term, it may not be heard until 2016, in which case a decision may not happen after President Obama’s term is over. Even if it is not possible to get the case scheduled in the Supreme Court this year, it is still very important for the Obama Administration to fight the case in order to pave the way for a subsequent administration to implement DAPA or a similar program.

While these developments are discouraging, it is important to remember that many farmworkers may still be eligible for DACA if they are able to meet the education requirement. Further, due to the new immigration enforcement priorities, those individuals without criminal histories should not be targets of enforcement. We continue to fight for the immigration reform this nation so desperately needs and believe participation in the political process is critical to our eventual success. Please encourage eligible or potential eligible citizens and voters to educate themselves about the options and vote.

Congressional Attacks on the H-2B Program

After years of litigation, the Department of Labor finally has successfully implemented rules in the H-2B temporary nonagricultural guestworker program that would provide some basic protections for workers. The H-2B program allows employers who can show that they are unable to find qualified willing and available US workers to hire guestworkers for temporary or seasonal jobs. Employers in forestry, landscaping, seafood processing, carnivals, hotels and hospitality and construction use the program. The H-2B program, like the H-2A program, is rife with abuses, due in part to the fact that workers are tied to their employers by their visas. Unfortunately, despite the urgent need for DOL’s very modest protections in the H-2B program, the employer lobby has pushed Congress to respond with attacks on these protections and a proposed expansion of the program.

The Senate Labor HHS appropriations bill that passed out of the Senate Appropriations Committee over the summer contains policy riders that would defund enforcement of many of the protections for H-2B workers and the US workers working alongside of them. The appropriations rider would also lower the already low wage rates in the H-2B program by allowing employer associations to create their own wage surveys of their own members to establish the wage they must pay in the H-2B program. The wages are supposed to protect US workers from adverse effects. For example, while the 2013 Bureau of Labor Statistics, Occupational and Employment Statistics data for pine straw workers in Florida was around $17/hour, an employer association submitted a survey indicating wages of $7.80/hr, one penny above that then-state minimum wage. The appropriations language would also effectively raise the cap in the H-2B program by exempting returning workers from the cap.

As if the stripped protections in the appropriations bill wouldn’t do enough harm, on October 30, 2015, Senators Thom Tillis (R-N.C.), Barbara Mikulski (D-Md.), Mark Warner (D-Va.), and Bill Cassidy (R-La.) introduced the Save our Small and Seasonal Businesses Act of 2015 (S. 2225). S. 2225 would make all the changes in the appropriations bill and would additionally even further reduce worker protections, such as by shifting the program from DOL to DHS and removing DOL’s oversight and enforcement authority. A more detailed analysis of S. 2225 to which Farmworker Justice contributed is available at this link.

Though it may seem that it isn't possible to strip workers of more protections than S.2225 does, some Members of the House have managed to come up with a bill that does so. On November 4th, Chairman of the House Judiciary Committee Bob Goodlatte (R-VA), House Small Business Committee Chairman Steve Chabott (R-OH), Rep. Andy Harris (R-MD) and Rep. Charles Boustany (R-LA) filed the “Strengthen Employment and Seasonal Opportunities Now (Season) Act” (HR 3918). In addition to many of the same changes to the H-2B program in the Senate bill, HR 3918 would strip H-2B workers of access to the health care exchanges and subsidies under the Affordable Care Act and exclude them from certain other tax benefits. Farmworker Justice is still analyzing this bill and will provide more information on it in the future.

These H-2B proposals represent a flawed piecemeal approach to immigration reform that would deprive U.S. workers of job opportunities, lower already poor wages for guestworkers and the domestic workers working alongside them, and allow for exploitative conditions in the workplace. Farmworker Justice opposes these proposals and any proposals to weaken the wages and worker protections in guestworker programs. Instead of giving in to employer demands to lower their labor costs, Congress should be working towards a comprehensive solution to reform our immigration system. Farmworker Justice is working with the International Labor Recruitment Working Group to fight off these harmful proposals.

Immigration in the Presidential Campaigns

In a shameful move, Senator Marco Rubio (R-FL) said that if he is elected President, he would end the Deferred Action for Childhood Arrivals program (DACA) that allows DREAMERS to have a temporary reprieve from deportation and work authorization. As many commentators have pointed out, Rubio has flipped flopped on immigration. He is an original author of the 2013 Senate passed comprehensive immigration reform bill, S744. He appears to be responding to pressure from Trump, whose frequent racist and xenophobic comments are driving the Republican candidates to more anti-immigrant positions.

Tragic Bus Accident

On November 6, a bus carrying H-2A workers from Michigan to Texas crashed in Arkansas, killing 6 passengers. The H-2A workers were reportedly returning to Mexico and were traveling in a bus that was owned by a labor contractor. Our hearts go out to these farmworkers and their families. Farmworkers face many occupational hazards and there have been many deaths from transportation incidents.

by Megan Horn
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Monday, 26 October 2015


The Senate held a failed vote last Tuesday to move forward on Senator Vitter's (R-LA) “The Stop Sanctuary Cities Act.” The legislation proposed to strip federal funding for local law enforcement agencies with community trust policies that promote good relations between law enforcement and immigrant communities. Such policies vary but they often limit police officers from asking people about their immigration status and the circumstances in which a law enforcement agency will turn immigrants over to federal immigration authorities. These policies make local areas safer. Community members are far less likely to come forward to report crimes and serve as witnesses if they perceive a risk of removal for themselves or their family members.

The measure failed by a vote of 54-45, with most Republicans voting for the measure and most Democrats voting against it. Sixty votes were needed to proceed to a debate on the bill. Senators Joe Donnelly (D-IN) and Joe Manchin (D-WV) voted with Republicans to move forward on the bill. Senator Kirk (R-IL) was the only Republican who voted against the bill. Senator Lindsey Graham (R-SC), a coauthor of the 2013 comprehensive immigration reform bill passed by the Senate, did not vote on the measure. The House already passed its own version of the anti-sanctuary city legislation this past summer, but it will not move forward unless the Senate is successful in passing similar legislation.

Meanwhile, the House has been consumed with drama around the elections for a new Speaker. Majority Leader Kevin McCarthy (R-CA) withdrew his name from the race the day the internal Republican election was scheduled to take place, stating that he didn't have enough support from the Republican caucus. The action came as a surprise and the election was postponed. After many Republican House members called on Rep. Paul Ryan (R-WI) to run for speaker, he announced last Tuesday that he would run for Speaker only if specific terms are met, including the backing of the three main house Republican caucuses, the Republican Study Committee, the Freedom Caucus and the moderate Tuesday Group. On Friday, Ryan announced that he has enough support to run for Speaker (even though he did not receive the 80% needed for an official endorsement by the Freedom Caucus; he does have the support of 2/3 of its members). Reports indicate that in order to win the support of the conservative Republicans, Ryan pledged not to move forward immigration legislation in the current Congress and without a majority of Republicans supporting the measure. Prior to his interest in the Speaker position, Ryan had worked behind the scenes to try to help move immigration reform forward in the House. Rep. Gutierrez issued a statement indicating his disappointment that Ryan made such a promise in order to secure the votes needed for his leadership bid. Speaker Boehner has set the internal Republican vote for October 28th and the House floor vote for October 29th.

Budget issues dominate the agenda in Congress this fall. The US government is set to reach the debt limit on November 3rd, so Congress must vote to raise the debt limit by then. The Federal Government's short term spending bill will expire on December 11th and Congress will have to pass another spending bill to avert a government shutdown. Some Members of Congress see these must-pass bills as an opportunity to insert policy changes into the legislation. President Obama has stated that he will veto anything less than a clean increase of the debt ceiling. Leadership in both parties are interested in negotiating a deal to raise the spending caps in the government's budget and have stated that they want to avoid a government shutdown. Farmworker Justice will be tracking these bills and working with others to prevent riders that would harm farmworkers and immigrants and low-wage workers more broadly.

Administrative Relief

While we prepare for implementation of President Obama’s administrative relief program, its implementation date is increasingly uncertain. The Deferred Action for Parents of American Citizens and Lawful Permanent Residents (DAPA) program that has the potential to benefit over 700,000 farmworkers and their family members remains on hold due to a court order. The Federal Government has appealed the district court’s decision to enjoin the DAPA and expanded DACA programs in Texas v. US to the 5th Circuit Court of Appeals. However, the three-judge panel of the Appeals Court is likely to uphold the lower court’s decision. While the prospects for the Supreme Court to accept the case and overturn the decision are brighter, the appellate decision must be issued very soon or it will be too late for the Supreme Court to rule during the term that ends in June 2016. As President Obama’s term of office ends in January 2017, the future of DAPA remains uncertain.

Farmworker Justice continues to advocate that the administration make DACA and other administrative changes to immigration policy accessible to farmworkers. This includes collaborating with other organizations to urge the administration to take action to protect immigrant workers asserting their labor rights from deportation and provide them access to work authorization. We are also educating farmworker serving organizations on DACA and how to prepare for DAPA by collecting documents through presentations and webinars.

New H-2A Sheepherder Rule

The Department of Labor released a new regulation in the H-2A program for ranchers seeking to employ guestworkers to herd sheep and other livestock on the open range. While the new regulation is a step up from the outdated and stagnant wages and protections currently in the sheepherder program, Farmworker Justice is disappointed that the Department of Labor gave in to industry pressure and lowered the wages from the original wage formula in the proposed rule.

The regulation will replace outdated guidance which allows employers to pay H-2A sheepherders and goatherders just $750 a month to be on call 24 hours a day, 7 days a week and live in mobile housing on the range. The low wages allowed under the H-2A program have been criticized for many years, as have the living conditions which the Government has permitted. Many H-2A sheepherders and goatherders live in isolation in tents or dilapidated trailers with no heat, air conditioning, running water or toilets and rely on their employers to deliver food periodically. They often have no contact with other people for weeks. Human trafficking is not uncommon in this industry.

Under the new regulation, ranchers will be required to pay a higher minimum wage except in states where state law already requires higher pay for herders (currently California). Generally, the ranchers will be required to pay at least $7.25 per hour for 48 hours per week, or about $1,500 per month. This increase will be phased in over three years. The wage formula in the Final Rule is still inadequate to compensate H-2A range livestock workers and to attract domestic workers to these jobs and essentially just requires employers to pay the federal minimum wage. The substantive requirements related to living conditions are also not substantial enough to ensure that these workers have adequate housing, food and access to emergency and other services. The regulations will go into effect on November 16th, 2015. Farmworker Justice's full statement on the regulation is available here.

H-2A Program Continues Steady Increase

The Department of Labor has released the total numbers of H-2A applications processed in FY 2015, which show that use of the program continues to increase significantly. There were about 140,000 jobs certified in FY 2015, up from around 117,000 positions in FY 2014, about a 20% increase. Florida beat North Carolina as the top user of the H-2A program this year, followed by North Carolina, Georgia and Washington. Although the H-2A program remains a small fraction of the 2.4 million in the farm labor force, it is expected to continue its expansion. Even as the program experiences tremendous growth, growers continue to complain that the program is too bureaucratic and difficult to use (i.e., they don’t like DOL’s oversight and the program’s other protections). The wage and worker protections are essential to protect domestic workers and to ensure that growers seek domestic workers before turning to the H-2Aprogram. Unfortunately, violations of program rules are common and much more enforcement is needed. As we’ve mentioned before, the structure of the program is inherently flawed due to the fact that workers are tied to their employers by their visas making them unlikely to come forward and report labor violations for fear of retaliation.


by Megan Horn
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