Farmworker Justice Immigration Update 4/3/15

Cesar Chavez Day and National Farmworker Awareness Week

Tuesday was Cesar Chavez Day – a day to honor the farmworker civil rights leader that continues to inspire many. Cesar Chavez Day marked the culmination of Farmworker Awareness Week. Farmworker Awareness Week is an opportunity for farmworker groups across the country to conduct events and engage in social media to raise awareness of the contributions farmworkers make and the challenges they face. To mark Cesar Chavez Day, Farmworker Justice attended a ceremony at USDA naming a courtyard in honor of Cesar Chavez; participated in a panel discussing immigration and the agricultural sector to highlight the need for comprehensive immigration reform with a path to citizenship for farmworkers; and delivered a petition with over 21,000 signatures to the EPA urging them to finalize the update to the Worker Protection Standard which protects farmworkers from pesticides. Of course, the fight for justice for farmworkers extends beyond this week and we look forward to continuing our work with many of you to make this happen.

Texas v. US

As reported in the last update, the Department of Justice has requested that the Fifth Circuit Court of Appeals issue an emergency stay blocking the district court judge’s injunction of DAPA and expanded DAPA until the appeal can be heard. The Fifth Circuit Court will hold oral arguments on the DOJ’s request for an emergency stay on April 17th. Presumably the court will make a decision soon thereafter. Even if the 5th Circuit fails to stay the injunction, this does not mean that the Obama Administration has lost the case, it simply means that the Court wants to leave the injunction in place until they have time to decide the full appeal. The Fifth Circuit also set a briefing schedule for the appeal of the district court’s injunction. The final brief will be due on May 18th. The court has not yet scheduled a date for oral arguments of the appeal and it has not disclosed the names of the judges who will sit on the 3-judge appeals panel.

Potential applicants for DAPA and expanded DACA are encouraged to continue saving money and collecting documents to prepare for the application process once it is implemented. For more information on DAPA and expanded DACA, read Farmworker Justice’s article (in English and Spanish) in the most recent Catholic Migrant Farmworker Network Newsletter attached to this email.

The House: Mandatory E-Verify

Immigration advocates and some others, including many agricultural employers, continue to highlight the devastation an enforcement-only approach such as mandatory E-Verify would have on our economy, on our nation’s aspiring Americans and on industries such as agriculture. Earlier this week, 61 Members of Congress (55 Republicans and 6 Democrats) sent a letter to Speaker Boehner and Judiciary Chairman Goodlatte expressing their concern that enacting mandatory E-Verify without ensuring “a legal, reliable workforce in both the short and long term” would “cause serious problems for our domestic agricultural industry and our nation’s economy. Farmworker Justice agrees that mandatory E-verify on its own would be devastating for farmworkers and their families. Our broken immigration system must be addressed through comprehensive immigration reform that provides a path to lawful permanent residency and eventual citizenship for the 11 million, including farmworkers and their families. We would strongly oppose any effort to pair mandatory E-Verify with a new guestworker program for agriculture. This would result in even greater devastation for agriculture, as US workers would be displaced by the new visa program, guestworkers would face great worker abuses, and the current experienced undocumented workforce would be pushed into an underground economy where they would be even more vulnerable to exploitation.

The letter also critiques the H-2A program as being unworkable for employers. We disagree and are educating congressional offices about the recent growth of the H-2A program as employers increase their use of it. At the same time, the increase in the numbers of employers using the H-2A program concerns us as the worker’s temporary nonimmigrant status and their tie to the employer that brings them here leads to great vulnerability and exploitation of both H-2A and US workers. Immigration reform is urgently needed.

The number of Republicans on the letter demonstrates a challenge House leadership may have trying to pass legislation such as mandatory E-Verify on its own. We will be advocating to ensure legislation such as E-Verify does not pass without broader immigration reform, including a path to citizenship.

Senate Hearing

Last week, the Senate Homeland Security and Governmental Affairs Committee held a hearing on “Securing the Border: Defining the Current Population Living in the Shadows and Addressing Future Flows.” The witnesses were Jeffrey S. Passel, Ph.D., Senior Demographer, Hispanic Trends Project, Pew Research Center; Daniel Garza, Executive Director, The LIBRE Initiative; Madeline Zavodny, Ph.D., Professor of Economics, Agnes Scott College and Adjunct Scholar American Enterprise Institute; Randel K. Johnson, Senior Vice President, Labor, Immigration, and Employee Benefits, U.S. Chamber of Commerce; and Marc R. Rosenblum, Ph.D., Deputy Director on Immigration Policy Program, Migration Policy Institute. The hearing focused on future guestworker programs, with some background discussion of demographic information regarding where the undocumented population resides and in what occupations they work (presumably to address where such future guestworker program would be needed). 

With the exception of Passel, whose organization does not take policy positions, the panelists advocated for a new “market-driven” guestworker program with visa portability. The witnesses generally agreed that wages, payroll treatment and benefits provided to guestworkers should be the same as those provided to US workers. One point of disagreement was that Rosenblum argued for robust workplace enforcement of labor protections, whereas Johnson and Garza expressed concerns related to protecting "innocent employers" from investigations by the Department of Labor's Wage and Hour Division. Another point of disagreement was the issue of circularity, that future guestworker should be encouraged to go back and forth between the US and their country of origin. Zavodny and others emphasized encouraging circularity, while Rosenblum said that workers shouldn't necessarily be forced to return. If workers have jobs and want to stay in the US, there should be a way for them to adjust to permanent residence status. 

Farmworker Justice opposes the notion of guestworker programs; however, we supported the agriculture compromise in last Congress’s Senate comprehensive immigration reform bill, S. 744, recognizing the political realities at the time and believing that the bill would benefit immigrants, including farmworkers, because of its path to citizenship for the undocumented and some future guestworkers, as well as key worker protections. Regarding the question of the permanency of “guest” workers, Farmworker Justice believes that guestworkers should be able to become full members of our society through a path to citizenship. While some foreign workers may choose not to remain permanently in the United States, that choice should be theirs. Even for those workers who may eventually return to their country of origin, lawful permanent residency gives them freedom and workplace equality that even the best structured guestworker program will never be able to offer. From our perspective, a discussion about future guestworker programs outside of the context of comprehensive immigration reform and without key stakeholders is troubling. 

New H-2A Sheepherder Regulations

The Department of Labor has been ordered to properly promulgate rules for the H-2A open range livestock workers by a federal court. The plaintiffs in the lawsuit are US workers and former herders who would like to be sheepherders if they were offered living wages and better living conditions. Range sheepherding is almost exclusively done by foreign H-2A workers and the unreasonably low-wages have remained stagnant for years, preventing US workers from entering the labor market. It’s high time for DOL to reform this inhumane program. The Department of Labor’s notice of proposed rulemaking is due out by April 15th. Keep an eye out for requests to sign-on to comments.

In advance of the new regulations coming out this April regarding protections for H-2A sheepherders, employers are already crying wolf that they will go out of business if they have to pay a living wage or provide decent housing for their employees. The employer-driven media, however, fails to note that the monthly wage provisions are just $750 a month in most states for sheep and goatherders to tend their flocks around the clock. While the federal law exempts sheepherders from the minimum wage, herders in Oregon and California are covered by state minimum wage laws and receive higher wages, $1,603.00 and $1,422.52 a month respectively. The ranchers in these states have not gone out of business paying these wages. Sheepherder wages may even need to be higher in order to attract US workers to the jobs. The DOL should come up with a formula that takes into account the adverse effect wage rate used for all H-2A non-sheepherders. If wages are increased across the H-2A sheepherder program, the playing field will be leveled for employers across the US.

Herders also often live in extremely isolated conditions, with some workers living in small mobile homes with no heat or refrigeration. With no access to stores, the herders rely on their employers to bring them food once a week and there have been many stories of workers going hungry. Herders’ extreme isolation and low wages make them very vulnerable to wage theft and trafficking. We look forward to DOL’s upcoming reforms to improve wages, living and working conditions for workers in this historically abusive program.

The H-2B Rules

Centro de Los Derechos del Migrante and Polaris have created a Change.org petition urging the Department of Homeland Security and the Department of Labor to jointly issue the 2012 H-2B rules that provide for increased worker protections for H-2B temporary nonagricultural workers. You can sign-on to the petition here. 

Cesar Chavez Day and National Farmworker Awareness Week

Tuesday was Cesar Chavez Day – a day to honor the farmworker civil rights leader that continues to inspire many. Cesar Chavez Day marked the culmination of Farmworker Awareness Week. Farmworker Awareness Week is an opportunity for farmworker groups across the country to conduct events and engage in social media to raise awareness of the contributions farmworkers make and the challenges they face. To mark Cesar Chavez Day, Farmworker Justice attended a ceremony at USDA naming a courtyard in honor of Cesar Chavez; participated in a panel discussing immigration and the agricultural sector to highlight the need for comprehensive immigration reform with a path to citizenship for farmworkers; and delivered a petition with over 21,000 signatures to the EPA urging them to finalize the update to the Worker Protection Standard which protects farmworkers from pesticides. Of course, the fight for justice for farmworkers extends beyond this week and we look forward to continuing our work with many of you to make this happen.

Texas v. US

As reported in the last update, the Department of Justice has requested that the Fifth Circuit Court of Appeals issue an emergency stay blocking the district court judge’s injunction of DAPA and expanded DAPA until the appeal can be heard. The Fifth Circuit Court will hold oral arguments on the DOJ’s request for an emergency stay on April 17th. Presumably the court will make a decision soon thereafter. Even if the 5th Circuit fails to stay the injunction, this does not mean that the Obama Administration has lost the case, it simply means that the Court wants to leave the injunction in place until they have time to decide the full appeal. The Fifth Circuit also set a briefing schedule for the appeal of the district court’s injunction. The final brief will be due on May 18th. The court has not yet scheduled a date for oral arguments of the appeal and it has not disclosed the names of the judges who will sit on the 3-judge appeals panel.

Potential applicants for DAPA and expanded DACA are encouraged to continue saving money and collecting documents to prepare for the application process once it is implemented. For more information on DAPA and expanded DACA, read Farmworker Justice’s article (in English and Spanish) in the most recent Catholic Migrant Farmworker Network Newsletter attached to this email.

The House: Mandatory E-Verify

Immigration advocates and some others, including many agricultural employers, continue to highlight the devastation an enforcement-only approach such as mandatory E-Verify would have on our economy, on our nation’s aspiring Americans and on industries such as agriculture. Earlier this week, 61 Members of Congress (55 Republicans and 6 Democrats) sent a letter to Speaker Boehner and Judiciary Chairman Goodlatte expressing their concern that enacting mandatory E-Verify without ensuring “a legal, reliable workforce in both the short and long term” would “cause serious problems for our domestic agricultural industry and our nation’s economy. Farmworker Justice agrees that mandatory E-verify on its own would be devastating for farmworkers and their families. Our broken immigration system must be addressed through comprehensive immigration reform that provides a path to lawful permanent residency and eventual citizenship for the 11 million, including farmworkers and their families. We would strongly oppose any effort to pair mandatory E-Verify with a new guestworker program for agriculture. This would result in even greater devastation for agriculture, as US workers would be displaced by the new visa program, guestworkers would face great worker abuses, and the current experienced undocumented workforce would be pushed into an underground economy where they would be even more vulnerable to exploitation.

The letter also critiques the H-2A program as being unworkable for employers. We disagree and are educating congressional offices about the recent growth of the H-2A program as employers increase their use of it. At the same time, the increase in the numbers of employers using the H-2A program concerns us as the worker’s temporary nonimmigrant status and their tie to the employer that brings them here leads to great vulnerability and exploitation of both H-2A and US workers. Immigration reform is urgently needed.

The number of Republicans on the letter demonstrates a challenge House leadership may have trying to pass legislation such as mandatory E-Verify on its own. We will be advocating to ensure legislation such as E-Verify does not pass without broader immigration reform, including a path to citizenship.

Senate Hearing

Last week, the Senate Homeland Security and Governmental Affairs Committee held a hearing on “Securing the Border: Defining the Current Population Living in the Shadows and Addressing Future Flows.” The witnesses were Jeffrey S. Passel, Ph.D., Senior Demographer, Hispanic Trends Project, Pew Research Center; Daniel Garza, Executive Director, The LIBRE Initiative; Madeline Zavodny, Ph.D., Professor of Economics, Agnes Scott College and Adjunct Scholar American Enterprise Institute; Randel K. Johnson, Senior Vice President, Labor, Immigration, and Employee Benefits, U.S. Chamber of Commerce; and Marc R. Rosenblum, Ph.D., Deputy Director on Immigration Policy Program, Migration Policy Institute. The hearing focused on future guestworker programs, with some background discussion of demographic information regarding where the undocumented population resides and in what occupations they work (presumably to address where such future guestworker program would be needed). 

With the exception of Passel, whose organization does not take policy positions, the panelists advocated for a new “market-driven” guestworker program with visa portability. The witnesses generally agreed that wages, payroll treatment and benefits provided to guestworkers should be the same as those provided to US workers. One point of disagreement was that Rosenblum argued for robust workplace enforcement of labor protections, whereas Johnson and Garza expressed concerns related to protecting "innocent employers" from investigations by the Department of Labor's Wage and Hour Division. Another point of disagreement was the issue of circularity, that future guestworker should be encouraged to go back and forth between the US and their country of origin. Zavodny and others emphasized encouraging circularity, while Rosenblum said that workers shouldn't necessarily be forced to return. If workers have jobs and want to stay in the US, there should be a way for them to adjust to permanent residence status. 

Farmworker Justice opposes the notion of guestworker programs; however, we supported the agriculture compromise in last Congress’s Senate comprehensive immigration reform bill, S. 744, recognizing the political realities at the time and believing that the bill would benefit immigrants, including farmworkers, because of its path to citizenship for the undocumented and some future guestworkers, as well as key worker protections. Regarding the question of the permanency of “guest” workers, Farmworker Justice believes that guestworkers should be able to become full members of our society through a path to citizenship. While some foreign workers may choose not to remain permanently in the United States, that choice should be theirs. Even for those workers who may eventually return to their country of origin, lawful permanent residency gives them freedom and workplace equality that even the best structured guestworker program will never be able to offer. From our perspective, a discussion about future guestworker programs outside of the context of comprehensive immigration reform and without key stakeholders is troubling. 

New H-2A Sheepherder Regulations

The Department of Labor has been ordered to properly promulgate rules for the H-2A open range livestock workers by a federal court. The plaintiffs in the lawsuit are US workers and former herders who would like to be sheepherders if they were offered living wages and better living conditions. Range sheepherding is almost exclusively done by foreign H-2A workers and the unreasonably low-wages have remained stagnant for years, preventing US workers from entering the labor market. It’s high time for DOL to reform this inhumane program. The Department of Labor’s notice of proposed rulemaking is due out by April 15th. Keep an eye out for requests to sign-on to comments.

In advance of the new regulations coming out this April regarding protections for H-2A sheepherders, employers are already crying wolf that they will go out of business if they have to pay a living wage or provide decent housing for their employees. The employer-driven media, however, fails to note that the monthly wage provisions are just $750 a month in most states for sheep and goatherders to tend their flocks around the clock. While the federal law exempts sheepherders from the minimum wage, herders in Oregon and California are covered by state minimum wage laws and receive higher wages, $1,603.00 and $1,422.52 a month respectively. The ranchers in these states have not gone out of business paying these wages. Sheepherder wages may even need to be higher in order to attract US workers to the jobs. The DOL should come up with a formula that takes into account the adverse effect wage rate used for all H-2A non-sheepherders. If wages are increased across the H-2A sheepherder program, the playing field will be leveled for employers across the US.

Herders also often live in extremely isolated conditions, with some workers living in small mobile homes with no heat or refrigeration. With no access to stores, the herders rely on their employers to bring them food once a week and there have been many stories of workers going hungry. Herders’ extreme isolation and low wages make them very vulnerable to wage theft and trafficking. We look forward to DOL’s upcoming reforms to improve wages, living and working conditions for workers in this historically abusive program.

The H-2B Rules

Centro de Los Derechos del Migrante and Polaris have created a Change.org petition urging the Department of Homeland Security and the Department of Labor to jointly issue the 2012 H-2B rules that provide for increased worker protections for H-2B temporary nonagricultural workers. You can sign-on to the petition here.