Farmworker Justice Immigration Update 6/14/16

Mourning the Victims of the Attack in Orlando

Farmworker Justice extends its condolences to all those who have been affected by the terrorist, hate-inspired attack on innocent victims in Orlando.

Businesses Lobby Against Worker Protections in the H-2 Programs

As we anxiously await the Supreme Court’s decision in US v. Texas, employers continue to demand rollbacks in worker protections in the H-2 programs. Bloomberg published an article on the H-2A program which fails to provide the worker or the immigrant rights perspective on immigration reform. Instead it views immigration reform through the lens of business and their desire to grow the H-2A program and strip out worker protections. There is no mention of a path to citizenship for the undocumented farmworkers who are essential to the $192 billion (2014 crop production) industry. Nor is there a description of the important role that the Department of Labor plays in protecting both U.S. workers and temporary guest workers.

Last Friday, over 100 members of Congress sent Secretary of Labor Thomas Perez and Director of US Citizenship and Immigration Services Leon Rodriguez a letter complaining about processing delays in the H-2A program. While the letter states that it supports efforts to “ensure that both employers and employees comply with the statutory requirements of the H-2A program,” it specifically asks that both agencies scale back these requirements.

In addition to broad complaints about the program, the letter asks that the Department of Labor (DOL) stop requesting that employers show that they have a temporary or seasonal need for labor. The H-2A program is limited to temporary and seasonal jobs partly to prevent employers from gaining easy access to vulnerable guestworkers for jobs that are year-round, which U.S. workers often prefer. DOL has had and continues to have problems with employers who game the system to hire H-2A guestworkers for year-round jobs. For example, DOL has been receiving H-2A applications for year-round workers on dairies that do not qualify for the program. DOL has caught and denied some of these application but some of them have been approved. If there is a true need for dairies to hire immigrant workers, Congress should create a visa program that allows workers to come to the US permanently, receive green cards and bring their families with them.

The H-2A letter also asks USCIS to stop requiring employers to use the Validation Instrument for Business Enterprises (VIBE) tool. VIBE is used by USCIS to ensure that employers are who they say they are, bona fide businesses that employ agricultural workers. The H-2A program and other visa programs have been used by shell companies and criminal enterprises to traffic people into the country and VIBE is used to weed out those bad actors.

Farmworker Justice is extremely disappointed that this letter was signed by many Members of Congress who purport to support working families. It does not reflect any concern for the widely documented abuse of both guestworkers and domestic workers at employers in the H-2A program. The best solution for protecting workers and granting agribusiness access to an adequate labor force is immigration reform that includes a path to citizenship for undocumented immigrants and for any future workers in agriculture. Meaningful immigration reform should provide security and dignity to farmworkers and help to stabilize the workforce.

Rep. Price’s Comprehensive Immigration Reform Bill Would Harm Immigrants, Refugees and Workers

Last week, Rep. Tom Price (R-SC) filed a comprehensive immigration reform bill that would cut family-based visas in half, institute mandatory E-verify, deny certain tax credits to immigrants, and make several other harmful changes to the immigration system. The bill would also block the current H-2A temporary agricultural guestworker program regulations and reinstate the 2008 regulations promulgated by the Bush Administration on its way out the door. This change would lower wages and reduce protections for both H-2A guestworkers and domestic workers. Upon taking office, the Obama Administration largely restored the H-2A regulations that had been in effect since the Reagan Administration. The bill would raise the H-2B cap from 66,000 to 264,000 visas per year with a returning worker exemption that would allow the program to grow much larger than that.

The H-2 programs are sorely in need of more protections not less. Any expansion of the programs should include a path for guestworkers to apply for green cards, portability of visas so that they may change employers, strong and equal worker protections and the ability to bring their families. In addition, Price’s bill should be opposed because it fails to provide a path to citizenship, or any legal status, for the 11 million undocumented immigrants in this country. Instituting mandatory E-verify would displace millions of workers and drive them further into the underground economy, likely resulting in more exploitation and abuse.

The bill includes a particularly outrageous provision that would take away U.S. foreign aid for Honduras, Guatemala and El Salvador and direct it towards funding for border security. The Northern Triangle countries are plagued by violence from drug cartels pushing people, particularly women and children, to seek refuge in the United States. Rather than address some of the root causes of the refugee crisis by proving funding to reduce violence in the region, Price’s proposal would have women and children make the dangerous journey to the border and then be turned away.

Little Hope for Stronger Worker Protections in the H-2B Program

The Senate subcommittee on Immigration and the National Interest held a hearing last Wednesday titled, “The H-2B Temporary Foreign Worker Program: Examining the Effects on Americans’ Job Opportunities and Wages.” The focus of the hearing was on whether the program has a negative impact on domestic workers – with little time given to discuss the rampant abuses and deplorable working conditions suffered by the H-2B guestworkers. Subcommittee Chairman Jeff Sessions (R-Ala.) opened the hearing by lamenting the “insatiable” need for foreign labor by special interests and the resulting tide of visa overstays. Unfortunately, Sessions’ anti-immigrant tone discredits a hearing that should address real abuse of both domestic (including immigrant) workers and H-2B guestworkers.

Still, the majority of witnesses at the hearing were not anti-immigrant but rather concerned that the program’s design allows for exploitation of H-2B guestworkers and the domestic workers who work alongside them. International Labor Recruitment Working Group members Meredith Stewart, the Southern Poverty Law Center, and Daniel Costa, Economic Policy Institute, testified as to these concerns. Among the issues they raised were inadequate funding for Department of Labor enforcement of program rules, the lack of job portability for workers mistreated by employers, inhumane conditions many H-2B workers are forced to endure, and the stagnation of wages in the industries that use the program. Both witnesses described how the fact that H-2B workers may only work for the employer that sponsors them makes them vulnerable to abuse. Costa elaborated on the link between job portability and wage stagnation. H-2B workers’ inability to leave low paying jobs means that employers don’t have to raise wages and improve working conditions to attract and retain workers, since they essentially have a trapped labor force. Costa also described the deficiencies in the H-2B program’s use of private wage surveys (often conducted by employer associations) for calculating the prevailing wage. These surveys are often inaccurate and result in workers being paid below average wages.

Sen. Richard Blumenthal (D-Conn.) spoke of the abuse committed in the international recruitment of guestworkers and submitted testimony into the record from the International Labor Recruitment Working Group (which Farmworker Justice is a member of) that described a system “rife with abuses.” He stressed concerns about the lack of enforcement in the H-2B program and discussed his frustrations with Senate opposition to any real reform efforts. In response to a question from Sen. Blumenthal, Stewart described the abuses that result from employers’ use of unregulated international labor recruiters who charge workers high recruitment fees causing them to arrive indebt and desperate to keep their jobs. Stewart urged Congress to regulate these recruiters and to hold employers liable for the abuses their recruiters inflict upon H-2B workers.

Michael Cunningham with the Texas State Building and Construction Trades Council, also testified. Cunningham described the effect that the H-2B program has on the building trades and gave many examples of employers who have violated the law in their misuse of the H-2B program, including misclassifying workers to pay them lower wages and refusing to hire US workers.

Also on the panel were Steven Camarota, the Director of Research at the Center for Immigration Studies, an immigration restrictionist who testified that the H-2B program harms US workers and Stephen Bronars, Edgeworth Economics, who testified in support of the H-2B program.

Few Senators attended the hearing. In addition to Senator Sessions, Sen. Thom Tillis (R-N.C.) attended and expressed concerns that if employers had to raise wages, they would go out of business, particularly in the seafood industry. Tillis acknowledged that there has been fraud and abuse in the program but suggested that the abuse is limited to a few bad actors and did not offer a solution to the problems in the program. Senator Chuck Grassley (R-IA) and Senator Amy Klobuchar (D-MN) also made brief appearances with Klobuchar applauding the H-2B program based on the use by one summer resort in Minnesota.

Appropriations Bills Contain Harmful “Riders”

On Thursday, the Senate Appropriations Committee passed a bipartisan Labor, Health and Human Services, and Education funding bill out of the committee that contains the same harmful riders (substantive legislation) that were in last year’s Labor-HHS appropriations bill. These riders defund enforcement of rules under the H-2B guestworker program that protect U.S. workers and H-2B guestworkers. In effect, the bill prohibits DOL from auditing certain employers and applying the definition of “corresponding employment” which determines which U.S. workers are entitled to the same wages and working conditions as guestworkers. It would also defund the enforcement of the 3/4 guarantee which protects guestworkers from being brought to the US and offered little to know work. The ¾ guarantee requires employers to offer or pay for at least 75% of the hours promised in the contract. All workers would also be harmed by the use of private wage surveys allowed in the bill. This allows employer associations to submit wage surveys by their members to set the prevailing wage. We are extremely disappointed that Congress continues to prevent the Department of Labor from enforcing modest protections for H-2B guestworkers and domestic workers.

Scare in DAPA/DACA Lawsuit Resolved Temporarily

On June 7, 2016, over a hundred thousand Dreamers were able to breathe a momentary sigh of relief when U.S. District Judge Andrew Hanen stayed his May 19 order that would have required the Federal Government to release their personal information. The May 19th order demanded that the Federal Government provide the court with the names, addresses and other identifying information of over 100,000 DACA recipients who had received three-year work authorizations last year. There was also an indication that Judge Hanen would consider releasing the information to some or all of the 26 States who are plaintiffs in US v. Texas. The order was issued as a sanction against the Department of Justice attorneys for alleged misconduct in the case.

The Department of Justice responded aggressively to Hanen’s sanctions, arguing that there was no bad faith in their representation and that the order itself was illegal because it exceeded his authority. DOJ also said that it planned to file an emergency appeal with the Court of Appeals if the stay was not granted. Attorneys for MALDEF and several other organizations also submitted a brief challenging the order on behalf of clients who are DACA recipients.

Hanen has stayed his order until an August 22 hearing in response to an expected ruling by the Supreme Court in US v. Texas, which will determine whether DAPA and expanded DACA move forward this year. That decision is anticipated to be handed down by the end of the month. Farmworker Justice will provide an update on the decision as soon as we read it.