Farmworker Justice Immigration Update 11/10/2015

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.