Immigration and Labor Rights

Farmworker Justice Immigration Update 3/3/15

The Department of Homeland Security is Funded Through September

Last week, Congress narrowly averted a shutdown of the Department of Homeland Security (DHS) for at least one week. As you’ll remember from previous updates, House Republicans had passed a DHS-funding bill that included language blocking President Obama’s executive actions on immigration, including the 2012 DACA program. The Senate held repeated votes on this legislation but was unable to muster the 60 votes needed to move forward due to unanimous opposition by Democrats. Furthermore, President Obama had promised to veto the bill.

On Friday morning, the last day that the DHS was funded, the Senate removed the House’s language blocking the President’s deferred action programs and passed a “clean” DHS-funding bill with the support of Democratic Senators. To satisfy conservatives focused on blocking battling President Obama’s executive actions, Senator Collins introduced a bill that would prevent President Obama’s 2014 executive actions on immigration from going into effect. So far, the Collins’ bill has lacked the votes to move forward, although four Democrats – Senators Donnelly (IN), Heitkamp (ND), Manchin (WV), and McCaskill (MO) – joined all Republicans to vote in favor of moving forward on the bill. The Senate is expected to revisit it after the DHS funding battle is over.

The Senate passage of the “clean” funding bill put the funding issue back in the House’s hands, where there was a surprising defeat of a proposed 3-week extension of current funding before the House managed to get a one week funding extension passed shortly before midnight. The one week extension relied on the support of House Democrats, who were reportedly promised the opportunity to vote on a clean funding bill through September this week.

On Tuesday, the House passed a bill by 257-167 to fund the Department of Homeland Security through September without any language blocking President Obama’s executive actions on immigration. 167 Republicans voted against the bill. The bill has already passed the Senate and the President is expected to sign it into law.

House Judiciary Committee to Mark-up Harsh Enforcement-only Bills

The House Judiciary Committee will begin marking-up four punitive, enforcement-oriented immigration bills on Tuesday. The four bills are revived versions of previous-failed bills. They are Rep. Trey Gowdy’s (R-SC) draconian interior enforcement “SAFE Act” from last congress, renamed the “Michael Davis, Jr. in Honor of State and Local Law Enforcement Act” (H.R. 1148); Rep. Lamar Smith’s (R-TX) “Legal Workforce Act,” which requires all employers to use E-Verify; Rep. Jason Chaffetz’s (R-UT) “Asylum Reform and Border Protection Act of 2015” (H.R. 1153), which would gravely harm asylum seekers, survivors of domestic violence and trafficking, military members, and abused neglected or abandoned children; and Rep. John Carter’s (R-TX) ironically named, “Protection of Children Act of 2015” (H.R. 1149), which would lower due process standards for all unaccompanied children and expedite their removal from the US.

Mandatory E-verify and local law enforcement of immigration would increase fear and drive undocumented farmworkers deeper into the underground economy, leading them to work for unscrupulous employers and labor contractors. These bills would further destabilize the farm labor force and harm the estimated 1.2 million undocumented farmworkers working hard to put food on our tables.

Enforcement-only approaches to immigration have been tried before and failed. The House Judiciary Committee is out of touch with the large majority of Americans who understand that deporting 11 million people is inhumane and unrealistic. The House Judiciary Committee should stop wasting time with political posturing and instead work towards a compromise solution to fix our immigration system, which must include a path to citizenship for the 11 million undocumented immigrants currently residing in the US.

The President Promotes his Executive Actions

President Obama spoke at a televised town hall last week in Miami on his executive actions on immigration. Members of the United Farm Workers and the Florida Association of Farmworkers attended the event along with leaders of their organizations. The President also met with several leaders of immigrant organizations, immigrants’ rights groups and labor unions last week. Obama expressed confidence that the Administration will prevail in the lawsuit against his deferred action programs—DAPA and extended DACA. The President also promised that he would veto any piecemeal legislation that does not contain a path to citizenship for the 11 million.

Legalized Farmworkers Will Stay in Agriculture

A recent NPR news story debunks the myth that undocumented farmworkers will leave agriculture once they obtain work authorization. As an expert in the article explains, when farmworkers do leave agriculture, it is not because of their legal status, but because they can't earn enough money from the low-wages and temporary work. Therefore, the answer to stabilizing the farm labor market is to improve wages and working conditions and provide stable employment. The story indicates that some growers are lobbying Congress for a new temporary agricultural guestworker program, but fails to mention that growers already have access to an unlimited number of guestworkers through the H-2A temporary agricultural guestworker program. A new agricultural guestworker program with lower wages and fewer worker protections than exist in the H-2A program is not a solution to stabilize the agricultural labor market. It would only lead to greater worker exploitation and displacement of US farmworkers and other experienced workers.

The real solution is to offer experienced farmworkers the opportunity to earn citizenship and for the food industry to adapt and improve farm jobs and conditions in order to maintain a productive and stable workforce and food supply. Farmworker Justice continues to monitor Congress for harmful agricultural guestworker proposals and educate legislators and their staff on such proposals and the H-2A program. 

Farmworker Justice Immigration Update 2/20/15

President Obama’s Deferred Action Programs Put on Hold by Court

A very conservative, outspoken federal judge issued a temporary order Monday blocking the Federal Government from implementing the President’s deferred action programs that were announced on November 20, 2014, known as DAPA and expanded DACA. The ruling was not unexpected as the federal judge, Judge Andrew Hanen, has made his views on the President’s policies on immigration known in the past. Unfortunately, the ruling creates uncertainty and fear in affected communities, but at this time is only a temporary roadblock as President Obama’s administration is appealing the order. Many legal scholars believe President Obama’s actions are constitutional and likely to prevail. Farmworker Justice urges people to stay calm and to continue preparing for administrative relief. Read our updated flyer on administrative relief in Spanish and English.

Judge Hanen based the injunction, or order blocking the deferred action programs, on the claim that the Obama Administration had not followed proper procedures in creating the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and the expanded Deferred Action for Childhood Arrivals (expanded DACA) program. This finding may be overturned as the programs are a general statement of policy based in prosecutorial discretion and do not require formal rulemaking. The judge has not yet addressed whether the programs violate any law or the Constitution. For a more detailed explanation of why Judge Hanen’s decision is wrong, read Harvard Law School Professor Cass Sunstein’s article in Bloomberg View and University of Chicago Law School Professor Eric Posner’s article in Slate.

Not just anyone can challenge a federal policy in court. Challengers have to meet a certain legal standard, known as standing, which includes a requirement to show that the plaintiff will be harmed by the law. The court in Texas v. US held that of the 26 states challenging the programs, Texas, at least, has “standing,” or the right to sue. A recent lawsuit by the notorious Arizona Sheriff Joe Arpaio challenging the President’s deferred action programs was thrown out of court because Arpaio could not show that the programs would cause him any harm. In the Texas case, Judge Hanen found that the State of Texas will be harmed by the cost of processing drivers’ licenses for deferred action recipients (apparently fees don’t cover the costs). He did not take into account any potential financial benefits to Texas through increased tax revenue and economic stimulation that is likely to result in the granting of work authorization to many of the state’s residents. This holding that Texas has standing to sue could also be overturned on appeal.

Today, the White House announced that it will seek an emergency stay – a request to block the injunction - of the judge’s order, which could speed up the appeals process. The normal process to appeal could take several months or longer. The Justice Department plans to file the stay by Monday at the latest.


Important things to know about the judge’s ruling:

The Obama Administration is likely to ultimately win the court case. 
Farmworker Justice, along with many legal experts, believes that President Obama’s executive actions are a proper exercise of his prosecutorial discretion, are constitutional, and should ultimately prevail. 

Potential DAPA and expanded DACA applicants should continue to collect their documents, save money for application fees and otherwise prepare to apply for deferred action. 
However, there is not currently an application process and they should not pay anyone to apply for them. For now, potential applicants should go to community information sessions or check out online resources to see if they may be eligible.

The original DACA program is still up and running.
The court order only affects the prosecutorial discretion memo by Secretary of Homeland Security Jeh Johnson dated Nov. 20, 2014 that outlines the changes to DACA and the new DAPA program. The original DACA program is not affected. Because the Nov. 20th memo expanded the DACA program and work authorization from 2 to 3 years, it appears that for now, work authorization may only be issued for 2 years. New applicants and renewal applicants should still submit their applications. The eligibility guidelines are available here

The Administration’s new enforcement priorities are still in effect.
The court case does not affect any of the other executive action memos on immigration. In fact, the judge stated that the Administration has the authority to set priorities as to who should be deported. The Department of Homeland Security’s new enforcement memo, “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” outlines the Department of Homeland Security’s priorities for deportations. Most undocumented immigrants without criminal convictions or with very minor convictions who did not enter or attempt to enter the US after December 31, 2013, will not be a priority for deportation and are not likely to be arrested or deported by DHS.

Farmworker Justice will continue to work with groups throughout the country to support and plan implementation of the DAPA/DACA programs and to win legislation that creates a path to citizenship for undocumented farmworker families. Several hundred thousand farmworkers who labor on our farms and ranches could be eligible for these deferred action programs. The programs are well within the President’s authority. By eliminating the constant fear of deportation, farmworkers and other aspiring Americans will be able to contribute more fully to their communities and will be empowered in their workplaces.

Major Victory in Case of Guestworker Abuse
On a more positive note, a federal jury in Louisiana awarded $14 million to 5 former Indian H-2B guestworkers, who were the victims of labor trafficking, fraud, racketeering and discrimination. Congratulations to the workers, their attorneys and the many other organizations and individuals who have worked hard for years to help bring justice to these workers. The workers are represented by the Southern Poverty Law Center, the American Civil Liberties Union, the Asian American Legal Defense and Education Fund, the Louisiana Justice Institute, Crowell & Moring, LLP, Sahn Ward Coschignano & Baker. More than 200 other workers have pending claims against the employer, Signal International, and the immigration lawyer and international labor recruiter that it used.
 

Republican Judiciary Committee Members Propose Same Old Failed Approach: E-verify Plus Harsh Guestworker Program as the Solution for Agriculture

On Wednesday, February 4, 2015, the House Judiciary Subcommittee on Immigration and Border Security held a hearing on “The Legal Workforce Act.” The hearing focused on Rep. Lamar Smith’s (R-TX) E-verify bill, titled “The Legal Workforce Act” filed in the last Congress. The bill would implement mandatory E-verify nationwide, without providing a path to citizenship for the current undocumented workforce or otherwise addressing the broken immigration system. Last Congress’s Legal Workforce Act, HR 1772, would have required that agriculture implement E-verify 24 months after the date of enactment, the latest of any industry.

The witnesses who testified in favor of mandatory E-verify were Randel K. Johnson, Senior Vice President, Labor, Immigration and Employee Benefits, U.S. Chamber of Commerce; Jill G. Blitstein, Esq., International Employment Manager, Human Resources, North Carolina State University; and Angelo Amador, Esq., Senior Vice President and Regulatory Counsel, National Restaurant Association. While some of the witnesses opposed a requirement to re-verify their current workforce, they were generally unconcerned about the current undocumented workforce of their member employers. 

The one witness who expressed opposition to mandatory E-verify was Chuck Conner, President and Chief Executive Officer, National Council of Farmer Cooperatives. Conner expressed opposition to mandatory E-verify in agriculture unless and until Congress passes a solution for the current undocumented farmworker population and a new agricultural guestworker program. Despite several attempts by Republican Representatives to lift up Rep. Goodlatte’s “Agricultural Guestworker Act” as a way forward for agriculture, Conner made clear that the bill is not a workable solution. Conner noted that Rep. Goodlatte’s Agricultural Guestworker Act is not a solution for agriculture’s labor needs as it fails to address the current skilled undocumented workers—roughly 1.2 -1.4 million undocumented workers—already working in agriculture. Later, Conner said that he was not aware of any growers’ association that endorsed Rep. Goodlatte’s, “Agricultural Guestworker Act.” Conner’s lack of support for the Rep. Goodlatte’s “Agricultural Guestworker Act,” H.R. 1773, is not surprising as the bill is not only morally reprehensible as one of the worst guestworker bills in decades, but it also fails to provide a realistic solution for our broken immigration system. Instead of providing what this nation desperately needs, a comprehensive immigration solution, this bill would convert an entire industry into an army of guestworkers. Goodlatte’s bill sends the message to aspiring citizens that “we want your labor only, you and your family are not welcome here.” Despite this, Rep. Trey Gowdy (R-SC) stated for the record that the South Carolina Farm Bureau endorsed the bill. Conner’s organization, the National Council of Farmer Cooperatives is part of the Agricultural Workforce Coalition, a large group of growers’ associations that supported the agricultural stakeholder agreement in the Senate-passed comprehensive immigration reform bill. 

Unfortunately, Conner also took the opportunity to criticize the H-2A agricultural guestworker program, claiming that the program is too dysfunctional and difficult to use for many farmers. The reality is that grower claims regarding the burdensome nature of the H-2A program are often really just complaints about DOL’s oversight and the modest wages and protections in the program. Despite complaints about the H-2A program, use of the H-2A program increased by over 140% recently, from about 48,000 worker positions certified in FY 2005 to about 117,000 worker positions certified in FY 2014. This rapid growth is alarming to worker advocates, in part because the program is used to displace the current domestic labor force. The -2A program facilitates discrimination by allowing employers to hire almost exclusively young men. Additionally, employers often prefer H-2A workers because they have more control over them than their domestic counterparts, who may request better pay or conditions or seek employment elsewhere. From the perspective of most farmworker advocates, the H-2A program protections are inadequate to protect workers and inadequately enforced. As a result, the program is rampant with abuse, as revealed in numerous exposés and our report, No Way to Treat a Guest: Why the H-2A Agricultural Visa Program Fails U.S. and Foreign Workers

Farmworker Justice submitted a statement for the record of the hearing explaining our opposition to a stand-alone mandatory E-verify bill and calling for comprehensive immigration reform. The broken immigration system inflicts harm on farmworkers, their family members, their communities, and the businesses that need their labor. While we look forward to the President’s deferred action program, which will potentially benefit hundreds of thousands of farmworkers, many other farmworkers will remain without work authorization and vulnerable to abuse. Mandatory E-verify would cause further harm in a workforce that already experiences high turn-over and poor wages and working conditions. 

Instead of further destabilizing the agricultural workforce through mandatory E-Verify, Congress should pass comprehensive immigration reform that includes an opportunity for undocumented farmworkers, their family members and the rest of the 11 million to obtain permanent immigration status and an opportunity for citizenship. Congress should also stop its attacks on President Obama’s executive actions to provide relief from deportation to many members of our communities, including those who came to the US as children and parents of US and LPR children. Immigrant farmworkers and other aspiring Americans deserve to be treated with respect and should be given the opportunity to earn immigration status and citizenship. Demands by some employer groups for exploitative guestworker programs should be rejected. Congress should pass immigration legislation that honors our history as a nation of immigrants.

Farmworker Justice Immigration Update 1/30/15

Extended DACA Applications will be Accepted Starting February 18th

The big news in immigration this week was that USCIS announced that it will begin accepting expanded DACA applications on February 18th. Under the expanded DACA guidelines, there will no longer be an upper age limit for applicants who otherwise qualify (currently applicants must have been under the age of 31 as of June 15, 2012). Additionally, individuals will have to show that they have lived in the US since January 1, 2010 (instead of the current requirement of June 15, 2007). The current DACA program is still open for applications and renewals and is now giving deferred action and work authorization for three years instead of two. DACA applicants will still have to meet the other requirements of DACA, including the education requirement and the requirement that applicants entered prior to the age of 16. Note that a new DACA application will be released as well and USCIS may discontinue the current form. Applicants should check the USCIS website for the new form and any new instructions or FAQs. Farmworker Justice will also circulate these materials as they become available.

Also this week, the Associated Press (AP) obtained internal training materials on the implementation of Obama’s deferred action programs for immigration agents working for Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP). The training materials instruct the agents to review files of detained immigrants and release those who are likely to qualify for deferred action. The agents are further instructed to ask undocumented immigrants that they encounter whether they may qualify for the deferred action programs. The goal of the new enforcement priorities is to focus on serious criminal offenders and recent entrants to the US.

Last week, the House Committee on Homeland Security marked up the “Secure Our Borders First Act,” HR 399, authored by the Chair of the Committee on Homeland Security Michael McCaul (R-TX). HR 399 would require “complete operational control” of the Southwestern border, defined as complete eradication of illegal border crossings. Failure to meet the goal would result in penalties against DHS officials. It is highly questionable whether this standard can ever be met. The Congressional Budget Office estimates that the bill would cost $4.2 billion in increased spending over the next five years and Secretary Johnson called the bill “extreme to the point of being unworkable.” Immigrants’ rights organizations have also harshly criticized the bill. The House was scheduled to vote on HR 399 this week, but leadership changed its mind citing low attendance due to the snow storm. Media reports also indicated that there is a significant conservative opposition to the bill by those who think that it doesn’t go far enough or fear that it is a first step in a plan for broader immigration reform measures.

Meanwhile, the issue of funding the Department of Homeland Security (DHS) remains unresolved. On Tuesday, the Senate Democratic Caucus sent a letter to Majority Leader Mitch McConnell stating that they would not vote for a Homeland Security spending bill that contains language that would limit the President’s executive action on immigration or other controversial riders. The letter is significant because McConnell needs at least 6 Democrats to get any bill through the Senate. 

The House-passed DHS appropriations bill would prevent the President from implementing the executive actions, including DACA and DAPA. President Obama promised to veto any bill that would affect the executive actions. Even if the Senate passes a clean funding bill with no provisions related to executive action, then the House may not take it up. The Department of Homeland Security’s funding is set to expire on February 27th unless a funding bill is passed. If the deadline passes, the Department of Homeland Security would “shut down.” While emergency personnel (a large portion of the agency) would be required to work, they would not receive pay until a funding bill is signed into law. 

Both the Senate and the House could likely pass a clean funding bill with Democratic support, but that could lead to a backlash by the right wing of the Republican Party against their leadership, particularly in the House where many members are committed to blocking the deferred action programs. House Speaker John Boehner announced that he will sue Obama in an effort to prevent him from implementing the deferred action programs. The action was called an effort to appease conservatives in the event a clean Homeland Security bill is forced through the House. 

Farmworker Justice continues to work on the implementation of President Obama’s executive actions on immigration. Please share with us any stories or questions you are facing in your communities to help us better advocate for a program that is inclusive of farmworkers. We will be participating in the Ready America: Implementing Immigration Action conference in February. The conference’s goal is to help organizations prepare for implementation of DAPA and DACA. For information on registering, visit www.adminrelief.org/readyamerica/

Farmworker Justice Immigration Update - 1/16/15

In the past few weeks, President Obama’s executive actions on immigration reform have been under attack in Congress and in the courts. You may recall that during the appropriations process late last year, a decision was made to fund DHS until only February in order to give the new Congress an opportunity to undo President Obama’s administrative actions on immigration. Wasting no time in acting, this week, the House of Representatives passed a bill funding the Department of Homeland Security (DHS) that attempts to block the President from implementing the new executive actions on immigration reform and to end the existing DACA program for young people. The parts of the Homeland Security bill relating to administrative relief were added to the bill as amendments. Members of the House of Representatives voted on the amendments and the underlying bill mainly along party lines. However, several pro-immigration reform Republicans voted against the amendments and final passage of the bill and several Democrats voted in support of the amendments and final passage. The amendment to terminate the DACA program passed by only a slim margin, with 26 Republicans voting against it, mostly from districts with high immigrant populations. The final appropriations bill passed by a vote of 236-191. Farmworker Justice joined other organizations in condemning the anti-immigrant amendments. 

The DHS funding bill is not expected to become law, however, as it is unlikely to get the 60 votes needed to pass the Senate. Even if it were to pass the Senate, President Obama is likely to veto the bill. This poses a problem for Congress because if they don’t pass a bill funding the Department of Homeland Security by February 27th, then the agency will be “shut down” (last time there was a government shut down the majority of DHS employees worked without pay until Congress passed an appropriations bill awarding them back pay). Senate Majority Leader Mitch McConnell said that he will give Senators the opportunity to vote on the House version of the bill. Some Republican Senators have stressed the importance of funding the security agency over playing politics on immigration. 

On the litigation front, a federal judge heard oral arguments on Thursday in the lawsuit in which 25 states are suing the President over his executive actions on immigration. After the hearing in the Southern District of Texas, Judge Andrew Hanen will decide whether or not to order the government to refrain from implementing the deferred action programs until after the case is fully adjudicated. It’s also possible that the judge could prohibit the implementation of the deferred action programs only in those states that are suing the federal government, allowing the programs to proceed in the other states. About a dozen states led by Washington State Attorney General Bob Ferguson have filed a brief in the case defending the executive actions.

In one victory for President Obama’s immigration executive actions, on December 23rd, a federal judge dismissed Sheriff Joe Arpaio’s lawsuit against the Federal Government challenging the Administration’s deferred action program. Judge Beryl Howell held that Arpaio does not legally have the right to bring the lawsuit. She found that he was unable to show that he would suffer a particular harm and therefore his claim is better suited for the political process to work out. In other words, he is no different from any other citizen who doesn’t like a government policy. Arpaio’s argument that the policies would affect him relied on the effect that undocumented immigrants’ criminal activities would have on him as a sheriff (arguing that the program incentivized more undocumented criminals to enter the country). Judge Howell said that the opposite is true: the Administration’s focus on deporting serious criminals could actually address his concerns rather than exacerbating them as Arpaio claimed. Judge Howell’s opinion also stated that the deferred action programs are an exercise of valid prosecutorial discretion consistent with Congressional policy.

In response to President Obama’s deferred action programs, some growers and their associations have begun to cry wolf about labor shortages again. A Florida article claiming that there is a labor shortage in agriculture says that during an economic recovery, workers leave agriculture for “less intensive jobs that produce more pay and stability – like hospitality and construction.” The article goes on to say that “industry experts fear the trend will broaden if many illegals are allowed to stay in the United States without fear of being deported,” implying that the fear of deportation keeps them working in agriculture. Check out Daniel Costa’s blog on the Economic Policy Institute’s website which responds to the Director of Government Affairs for the Western Growers’ Association, Ken Barbic’s statement that farmworkers with DAPA will leave agriculture. 

For too long growers have been able to rely on an oversupply of farm labor and paying below market wages to keep their labor costs down, whether through guestworker programs or by hiring undocumented workers. Like any other business, growers need to follow the economic law of supply and demand to attract and retain farmworkers. That means improving wages and working conditions and introducing more efficiency and fairness into the workforce. Farmworker Justice rejects the demands of some legislators and growers for a new guestworker program that would eliminate wage and other labor protections from the H-2A program and would not include an opportunity for immigration status and citizenship. The only solution to stabilize our labor force is Congressional action that offers the opportunity for legal immigration status and citizenship to undocumented workers. While President Obama's executive action provides valuable relief for those who qualify, the action is limited in that it will only reach a portion of the undocumented farm labor force and does not provide a path to citizenship. 

Meanwhile, Sen. Dianne Feinstein (D. Calif.) is reportedly interested in filing a farmworker immigration bill based on the agricultural stakeholder agreement in last year’s Senate bill. However, even if a reasonable compromise farmworker bill passes the Senate, the House is unlikely to take it up. Rep. Goodlatte’s “Agricultural Guestworker Act” that was passed out of the House Judiciary committee in the last Congress is worse than the historically abysmal Bracero program, and would create a massive new guestworker program with low wages and almost no worker protections. Undocumented farmworkers would be expected to self-deport and come back as guestworkers without their family members. In addition to being contrary to American values, Goodlatte’s bill fails to provide needed reforms and lacks the political support to become law.

Farmworker Justice will continue working to build support for meaningful immigration reform in Congress that includes a path to citizenship, and to educate Congressional offices about the problems in the current H-2A guestworker program and with the guestworker reform model. We are also continuing to defend President Obama’s immigration executive actions while educating the farmworker community about administrative relief and planning for implementation in conjunction with the UFW Foundation and the Si Se Puede network, as well as with other immigration advocacy groups.

12/19/14 Farmworker Justice Immigration Update

As the 113th Congress comes to an end, so does the closest chance that we have had to passing comprehensive immigration reform in over a decade. The prospects for immigration reform that includes a path to citizenship in the incoming 114th Congress are dim. On the bright side, President Obama’s executive actions on immigration will be implemented in 2015, including expanded DACA and the new deferred action for parents program (DAPA), which could grant deportation relief for up to 5 million people. US Citizenship and Immigration Services is expected to begin accepting applications for expanded DACA in February and DAPA in May 2015.

President Obama’s executive action on immigration is likely to face challenges in the upcoming Congress; however, any efforts to block the President’s immigrations actions are likely to be largely symbolic because Congress lacks the vote to override an expected Presidential veto. In the last couple of weeks, Congress passed and the President signed the omnibus appropriations bill which funds all government agencies through FY 2015, except for the Department of Homeland Security (DHS). DHS was separately funded until February, when the Department’s budget will be reconsidered. House Republican leadership chose to only fund DHS for two months to give them another opportunity to block the President’s immigration executive action.

In the Senate, Senator Rand Paul (R-KY) filed a bill in an attempt to prevent the President from implementing his deferred action programs for undocumented immigrants. The “The Preventing Executive Overreach on Immigration Act,” is the companion legislation to Rep. Yoho’s (R-FL) bill, H.R. 5759, with the same title, which passed the House two weeks ago. Paul’s bill would prevent the Administration from implementing the DAPA program (the program which will allow parents of US citizens and lawful permanent residents who have been living in the US since January 1, 2010 to apply for deferred action and work authorization). The bill would also prevent the Administration from processing any new DACA applications, effectively terminating the program.

The Senate Judiciary Committee also held a hearing titled, “Keeping Families Together: The President’s Executive Action on Immigration and The Need to Pass Comprehensive Reform.” Prior to the hearing, UFW member Raul Esparza de la Paz participated in a press conference with Senators and other impacted community members. De la Paz said that he has one adult child who has already benefited from DACA and that he and his wife and 2 of his adult children will now be able to benefit from deferred action, removing the fear of immigration enforcement that they currently live with. De la Paz urged Congress to support the executive action on immigration and work to pass comprehensive immigration reform.

In addition to challenges from Congress, President Obama’s immigration actions are facing legal challenges from the courts. On Tuesday, in an overreach of his authority, a federal judge in Pennsylvania took it upon himself to declare Obama’s executive action on immigration unconstitutional in a court opinion that provided no basis for him to issue such a decision. The judge, Arthur Schwab, did not order the Administration to stop implementing the executive action and his ruling has no legal effect on it. The decision has been criticized because the constitutionality of the case was not at issue: neither party had argued that the President’s actions are unconstitutional nor had they briefed the court on the issue. Ilya Somin, a law professor at George Mason University writes in the Washington Post that the court opinion’s discussion of the executive action was brief and poorly reasoned. The Huffington Post reports that Judge Schwab has a checkered past. He has been removed from two cases by the 3rd Circuit Court of Appeals, in 2008 and 2012, a move that is rare and considered to be a disciplinary action.

There are also two pending constitutional challenges to the President’s administrative action. As mentioned in a previous update, several states have sued the President; the total count is now up to 24 states. The notorious Sheriff Joe Arpaio in Arizona has also requested a federal court to declare the President’s administrative relief programs unconstitutional and issue an order preventing the President from implementing it. The Department of Justice has asked the court to dismiss the Arpaio case. As we’ve said before, the President’s deferred action programs are firmly rooted in his prosecutorial discretion authority and many legal scholars believe the programs are constitutional. Nonetheless, we will be watching these cases closely and will keep you informed on developments.

Recent polls indicate that the majority of voters want Congress to act to fix our broken immigration system, rather than prevent President Obama’s executive action. Only time will tell whether Congress will listen. Unfortunately, statements by Congressional leaders indicate that Congress may move forward on a guestworker and enforcement-only strategy, doing nothing for the 11 million undocumented immigrants in the US. In the new Congress, Farmworker Justice will continue to advocate for immigration reform that treats farmworker communities and other undocumented immigrants humanely and in a way that comports with our values as a nation of immigrants. We will also be preparing to help implement DAPA in farmworker communities.

Farmworker Justice Immigration Update 12/05/2014

Two weeks have passed since President Obama’s announcement of executive relief. Farmworker Justice, along with many individuals and organizations, is working hard to share information about the upcoming opportunity for deferred action through the new deferred action program for parents (DAPA) and the expanded DACA programs. Information is available on our webpage, www.farmworkerjustice.org, and the sisepuede.org website. We are working with the UFW Foundation and other farmworker and immigration groups to plan for the implementation of administrative relief when the application period begins in around May 2015. Our Spanish-language outreach flyer can be found here.

Even as we continue to plan to implement administrative relief, we are also having to defend the program against congressional attacks. Following last week’s Thanksgiving recess, Congress returned this week to a brief session. As expected, President Obama’s executive action on immigration came under immediate attack by House Republicans.

On Tuesday, the House Committee on Homeland Security held a hearing titled “Open Borders: The Impact of Presidential Amnesty on Border Security.” Secretary of Homeland Security Jeh Johnson testified at the hearing, defending the executive actions on immigration as a common sense approach to enforcing immigration law. The House Judiciary Committee also held a hearing on Tuesday, with a biased title “President Obama’s Executive Overreach on Immigration.” As the name implies, the hearing focused on whether or not the President has the authority to take his administrative actions on immigration, particularly the Deferred Action for Parental Accountability program (DAPA). Republicans and their witnesses claimed that the President does not have the authority to create deferred action programs. The Democrat members’ witness, Marielena Hincapie, executive director of the National Immigration Law Center, defended the President’s constitutional authority as a proper exercise of prosecutorial discretion. Farmworker Justice submitted statements for the record of both hearings to support the president’s executive action and highlight its importance to agricultural workers.

With some exceptions, there is broad consensus among legal scholars that the President has ample authority to create DAPA and DACA along with his other executive actions on immigration. His actions are supported by a legal memo by the Office of Legal Counsel. One hundred and thirty-five legal scholars have signed a statement stating that the President’s actions were constitutional and within his legal authority. Separately, four lawyers who formerly served as general counsel to US Citizenship and Immigration Services wrote a letter supporting the President’s authority to take these actions. 

On Thursday, the House passed Rep. Yoho’s (R-FL) bill, H.R. 5759, the “Preventing Executive Overreach on Immigration Act of 2014” by a 219-197 vote. H.R. 5759 asserts that President Obama’s deferred action program has no statutory or constitutional basis and seeks to categorically prevent the executive branch of the government from providing deferred action going forward, with only limited exceptions. The bill also incorrectly implies that President Obama’s deferred action programs provide categorical relief, instead of case-by-case relief. The House voted largely along party lines with a few pro-immigration reform Republicans voting against it and 3 Democrats voting for the measure. 

Farmworker Justice condemns the House’s passage of HR 5759, which would strip away potential protections and work authorization from the many aspiring Americans who could benefit from the President’s executive authority, including the parents of US citizen and LPR children and DACA individuals who came to the country as children. Instead of playing political games, the House should take up and pass HR 15, the comprehensive immigration reform bill that is similar to the bill passed by the Senate over a year ago, S.744.

Yoho’s bill was largely a symbolic measure as the Senate is not expected to take it up and President Obama has promised to veto it. A few other anti-immigrant Republicans voted against the bill or abstained from voting in protest because they would like the House to be more aggressive in opposing the President’s action. Specifically, those members along with Senator Ted Cruz would like to see the deferred action programs defunded through the government spending bills up for a vote next week, even though this would almost certainly lead to a government shutdown. 

House Speaker John Boehner and other Republican leaders do not support shutting down the government (Republicans were largely blamed for the last shut down). Instead, Speaker Boehner proposes to split the funding bill in two parts, funding all of the government except for the Department of Homeland Security (DHS) until September 2015 and funding DHS, which among other things is responsible for immigration services and enforcement, only for a few months. That way, this fight can play out again in 2015 when Republicans control both houses of Congress.

Seventeen states also filed a lawsuit against the President arguing that his executive actions are in violation of his constitutional duty to enforce the laws and are placing an illegal burden on state budgets. The lawsuit is led by Attorney General and Governor-elect of Texas, Greg Abbott. It is unclear whether the states have standing, or the right to sue the President at all. 

Some grower groups have expressed concern that the President’s administrative relief will not be very helpful to them and that it may instead harm them by giving their workers work authorization and the ability to “migrate into other industries that give them year-round work, holidays, pensions, more security. And that would be obviously detrimental to agriculture.”

We are expecting to see efforts to pass an agricultural program in the upcoming Congress. Incoming Senate Majority Leader Mitch McConnell (R-KY) has declared that he will “bust up” the Senate comprehensive immigration reform bill to pass it in pieces. He said that he would like to focus on border security, E-verify and changes to the H-1B and H-2A programs. McConnell, however, did not promise to bring up the piece that would offer undocumented immigrants a path to citizenship. We will be watching any efforts to change the H-2A program closely. Despite many grower complaints that the H-2A temporary foreign agricultural worker program is “unworkable,” the H-2A program has seen huge increases in recent years. Program use has expanded over 140% since 2005, with 18% growth in the last year alone. From our perspective, the H-2A program’s modest protections are inadequate to protect workers and the program is rife with abuse. H-2A workers typically arrive indebted and fearful, are tied to an employer for an entire season, and must leave the country when the job ends, factors which make workers extremely vulnerable to abuse. 

In the upcoming Congressional session, Farmworker Justice will continue to fight against proposals for harsh and exploitative temporary agricultural guestworker programs and will urge Congress to provide farmworkers and other aspiring Americans currently residing in the US a path to permanent legal status and eventual citizenship. 

Farmworker Justice Immigration Update 11/20/2014

President Obama Announces Plan to Defer the Deportation of up to 5 Million Undocumented Persons

Farmworker Justice applauds President Obama for taking positive executive action to address our broken immigration system. We celebrate with the hundreds of thousands of hard-working farmworkers who will qualify for this relief. Farmworker Justice has been working towards a more just immigration system for farmworkers for decades and with the hard work of so many, we stand one step closer to the reform our immigration system so desperately needs. We vow to continue fighting until Congress passes legislation for all undocumented immigrants, including farmworkers who are not covered by this executive action. Our press statement on the President’s announcement is available here.

The President’s plan includes a series of actions, the most significant of which is a plan to provide relief from deportation for up to 5 million undocumented immigrants (this number includes individuals eligible for DACA). Deferred action participants may also apply for work authorization. Individuals may qualify for the new program if they are the parents of US citizens or legal permanent residents (LPR) and have been in the US since January 1, 2010. Applicants must have US citizen or LPR children as of the date of the announcement, November 20, 2014. Applicants will be required to pay a fee and pass a criminal and national security background check. USCIS will not be accepting applications to this program for several months, likely until sometime in the spring. Deferred action and work authorization will last for 3 years and be renewable.

A very rough estimate of farmworkers eligible for deferred action is 450,000. Available data are inadequate to confidently state a number or even a range. There may be about 2.4 million farmworkers in the U.S.; between 50% and 70% are undocumented. Surveys show that a large majority (over 80%) have resided in the U.S. for at least five years; a substantial portion (probably less than one-half) are parents of children who are U.S. citizens or lawful permanent residents.

DACA Program Expanded:
The Deferred Action for Childhood Arrivals program (DACA) will also be expanded to cover more individuals. The requirement that applicants have continuously resided in the US since June 15, 2007 will be changed to January 1, 2010. Significantly, the requirement that applicants were under the age of 31 as of June 15, 2012 will be eliminated, so there will be no upper age limit for applicants who otherwise qualify.

Worker Protections:
According to the White House, “The Department of Labor (DOL) is expanding and strengthening immigration options for victims of crimes (U visas) and trafficking (T visas) who cooperate in government investigations. An interagency working group will also explore ways to ensure that workers can avail themselves of their labor and employment rights without fear of retaliation.” As more details become available, we will analyze how this might impact workers on the ground.

Enforcement:
The Department of Homeland Security (DHS) is also revising its enforcement priorities through a new enforcement memo. Enforcement will be focused on people who committed major crimes and on border enforcement. DHS will be eliminating the Secure Communities program and replacing it with a new program that is aligned with the new priorities.

Other Changes to Visa Programs:
There will also be changes related to H-1B and L visas, students in STEM fields, and entrepreneurs. DHS and the White House will have more information on these plans available on their websites soon.

We will be engaging in more detailed analysis that we will share with you all. We are working with the UFW, UFWF and other farmworker organizations to implement the President’s deferred action program to ensure that as many eligible farmworkers as possible are able to learn about the program and apply. The United Farm Workers Foundation has created a website, sisepuede.org, which provides information about administrative relief. We will also be posting materials on our webpage, www.farmworkerjustice.org.   

Farmworker Justice Immigration Policy Update Nov. 19, 2014

President Obama to Announce Executive Action on Immigration Tomorrow Evening

The White House announced today via a statement and video that President Obama will announce his plans for executive action on immigration in a speech at 8:00pm ET Thursday evening. You can watch the President’s speech tomorrow at WhiteHouse.gov/Live. On Friday, President Obama will give a more in-depth speech at Del Sol High School in Las Vegas, Nevada explaining his executive action.

Farmworker Justice is pleased that the President is moving ahead with executive action to address our broken immigration system. We urge the President to provide broad, bold administrative relief that includes farmworkers and their family members.

There are an estimated 2.5 million farmworkers laboring on our farms and ranches to bring food to our tables. At least half of farmworkers – roughly 1.25 million – are undocumented immigrants. The presence of so many undocumented farmworkers in the labor force makes them vulnerable to exploitation and abuse, depressing the wages and working conditions for all farmworkers. Farmworkers make important contributions to our communities and our economies and should be protected from deportation and provided with work authorization.
The United Farm Workers (UFW), the UFW Foundation and the United Food and Commercial Workers International Union (UFCW) held a symbolic Thanksgiving meal in front of the White House today with workers who harvest and produce food commonly eaten at Thanksgiving. Rep. Luis Gutierrez (D-IL); Arturo Rodriguez, President, UFW; Esther Lopez, International Vice President and Director of Civil Rights and Community Action Department, UFCW; and several farmworkers and food processing workers spoke about the importance of executive action for farmworkers and food processing workers. They called on President Obama to deliver the most inclusive changes to immigration policy possible through executive action. 

Meanwhile, according to a Wall Street Journal article, some growers are expressing concern that “giving farm workers the ability to work legally will prompt many to seek other jobs… ‘Unless it includes incentives for people to continue to work in the ag force, it could hasten attrition,’ said Craig Regelbrugge, national co-chairman of the Agriculture Coalition for Immigration Reform.” Farmworker Justice believes that agricultural employers should be required to compete for labor and attract job applicants by improving wages and working conditions. As explained in a report by knowledgeable researchers, the majority of farmworkers legalized under the 1986 immigration reform law continued to work for years in agriculture and the same would likely occur for farmworkers granted status today.

We do not yet have details about the President’s executive action plans and rumors are flying. Some media reports suggest the President’s action may provide protection from deportation and work authorization to undocumented immigrants with U.S. citizen or lawful permanent resident (LPR) children who have been in the U.S. for a significant period of time – possibly 5 to 10 years. There may also be an expansion of the Deferred Action for Childhood Arrivals program. Many hard-working undocumented immigrants in agriculture and elsewhere could benefit from such criteria, but many would be left out. The majority of undocumented farmworkers have strong ties to the United States, and have lived and worked here for at least five years, and for many, at least ten years. However, others have entered the United States more recently or do not have citizen or LPR children. We will be analyzing the President’s announcement to share with you how the executive action will impact farmworkers.

Some opponents of legalizing undocumented individuals claim that the President doesn’t have the legal authority to enact such administrative relief. This is false. President Obama has clear legal authority to defer the deportations of millions of undocumented immigrants with strong ties to our communities and to provide them with work authorization. As part of the President’s existing authority to enforce the law, he can and must set priorities, target resources, and shape how laws are to be implemented. Since the 1950’s, every President, including both Republican and Democratic Presidents, has used his authority to defer the deportations of millions of people in the country without status. Nonetheless, some Members of Congress have promised to introduce legislation to stop the President from exercising his legal authority under immigration law; Farmworker Justice will join with others to oppose such efforts.

Administrative relief is vitally important, but the struggle does not end there. Only Congress can create an opportunity for undocumented farmworkers and their family members and the rest of the 11 million to obtain permanent immigration status and an opportunity for citizenship. Farmworker Justice will continue to fight for a permanent solution that offers the 11 million undocumented immigrants in this country a path to citizenship.

We will also continue to fight against harsh one-sided guestworker programs because they are inhumane and not an appropriate solution to securing a productive agricultural sector in which farmworkers are treated fairly. The H-2A agricultural guestworker program serves employers’ needs but subjects many farmworkers to abuses. Yet some House members are planning to push for a new agricultural guest worker program. The people who come to this country to produce our food should be treated as immigrants who can raise their families and earn an opportunity for U.S. citizenship.

Stay tuned for more information about the President’s executive action and what you can do to help farmworkers in your communities obtain relief from deportation fears.

Farmworker Justice Immigration Update 11/7/14

With the midterm elections over, all eyes are turned to the President to see what steps he will take to address our broken immigration system. As you may recall, in September President Obama announced a delay in his plans for administrative action to address the broken immigration system, which he had previously promised would take place by the end of the summer. The President’s stated reason for delay was that his Administration needed more time to explain the Central American child refugee crisis to the American people and to build support for his administrative action. While not the stated basis for his delay, this week’s elections were widely regarded as a primary reason for this setback.  

At a press conference on Wednesday, President Obama reaffirmed his commitment to take executive action to improve the immigration system by the end of the year. While President Obama said that he would prefer that Congress pass immigration reform legislation, he was committed to taking executive action given the House’s failure to act. President Obama noted that he would like legislation to eventually replace his administrative action, but stated, “But what I’m not going to do is just wait. I think it’s fair to say that I’ve shown a lot of patience and have tried to work on a bipartisan basis as much as possible, and I’m going to keep on doing so.” The President declined to give any details on what form the relief will take. The anticipated announcement of administrative action on immigration is rumored to include a program that could protect millions of undocumented immigrants from deportation and provide them with work authorization.

Republican gains on Tuesday are not likely to have a significant impact on the potential for immigration reform legislation to pass in the next two years. Republicans gained enough Senate seats (7 so far, plus they could pick up two more: the Alaska race has not yet been called and Louisiana has a runoff scheduled for December 6th) to take majority control of the Senate and enough House seats to give them the largest majority they have had since World War II. However, Tuesday’s election results are not viewed as a referendum on public support for immigration reform; in fact exit polling shows that 57% of voters support a path to citizenship.

Immigration legislation that would create a path to permanent immigration status and citizenship for undocumented immigrants is very unlikely to pass in the next two years. The current Congress was the best opportunity to pass comprehensive immigration reform in recent years and the House refused to bring the Senate-passed comprehensive immigration reform bill up for a vote, or for that matter, any immigration reform bill. Instead, the only votes the House held on immigration were to seek to end the DACA program and to expedite the removal of unaccompanied minors from Central America fleeing violence to the U.S. There is no indication that the House will be any different in the next two years, especially once the Presidential primary season begins.

There may be some efforts in Congress to block the President’s executive action on immigration. Congress may also seek to pass bills that provide even more money to increase the militarization of the border and create harmful guestworker programs. Farmworker Justice will continue to educate Congress and the public about the need for legal status and citizenship for farmworkers and other aspiring Americans. We will also continue our work to improve the H-2A agricultural guestworker program, to explain the inherent flaws in the guestworker model and to fight off bad proposals for agricultural guestworker programs.

Farmworker Justice believes that now is the time for President Obama to act boldly to provide expansive affirmative administrative relief to address the millions of undocumented people who contribute to our economy and society but suffer due to our broken immigration system. The Administration must take action because Congress has failed to address the urgent need for comprehensive immigration reform. Any action President Obama takes must be broad and inclusive of farmworkers, the majority of whom are undocumented. Broad, bold administrative relief would help farmworkers, their families and their communities, and would help stabilize the farm labor force and ensure a prosperous agricultural sector. We will continue our advocacy to ensure farmworkers are included in the anticipated administrative relief. We are also working with our allies to ensure that farmworkers will be able to access and take maximum advantage of any administrative relief opportunities.

Thank you for your support of farmworkers.

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