Immigration and Labor Rights

Farmworker Justice Immigration Update 10/26/2015

Congress

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

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

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

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

Administrative Relief

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

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

New H-2A Sheepherder Rule

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

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

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

H-2A Program Continues Steady Increase

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


 

Farmworker Justice Immigration Update 10/2/15

The Pope calls for Immigration Reform and Boehner Quits
Last week Pope Francis visited New York City, Philadelphia and Washington, DC where he spoke at the White House and to Congress. The Pope spoke passionately about welcoming immigrants and refugees and treating them with dignity.

Among the events surrounding the Pope’s visit, We Belong Together organized the 100 Women, 100 Miles Pilgrimage, in which 100 mostly-immigrant women walked from a detention center in York, Pennsylvania to Washington, DC to greet the Pope and to demand that migrants be treated with dignity and respect. Along the way, the women met with farmworker members of CATA, the Farmworker Support Committee, to dialogue about successful organizing campaigns among excluded workers.


Speaker of the House John Boehner (R-OH), a Catholic, had invited the Pope to speak to Congress. The day after the Pope’s speech, the Speaker announced that he is retiring from Congress at the end of October. Majority Leader Kevin McCarthy is favored to become the new Speaker and there is likely to be a more competitive race to succeed him as Majority Leader.


As you may remember from previous updates, Kevin McCarthy represents Bakersfield and other areas in Kern County, CA, a district that is 35% Latino and home to many farmworkers. McCarthy has been the target of many protests pushing for immigration reform organized by the United Farm Workers, the UFW Foundation and other groups, but he has not expressed support for comprehensive immigration reform that includes a path to citizenship for undocumented immigrants. The change in leadership is not likely to change the prospects for getting a CIR bill passed in the House nor to change the way Congress functions. The divisions in the Republican Party remain and McCarthy is likely to face the same challenges and obstacles to passing legislation as Boehner.


On Wednesday, the last day of the fiscal year, Congress passed legislation to temporarily fund the government for FY 2016. Despite efforts by some conservative lawmakers to defund Planned Parenthood at the risk of forcing a government shutdown, Congress passed a government spending bill through December 11th when it will have to revisit the budget fight. Senator Ted Cruz’s (R-TX) attempts to block the funding bill were stopped procedurally by Republican leadership and most of the other GOP Senators who are apparently tired of his antics.


New Bill Offers Undocumented Immigrants Access to Healthcare
Rep. Luis Gutierrez (D-IL), an ardent advocate for immigration reform that includes a path to citizenship for undocumented immigrants, introduced the Exchange Inclusion for a Healthy America Act of 2015 on Wednesday, which would expand health insurance access to millions of immigrants, including over a million farmworkers and their family members. The bill would provide undocumented immigrants with equal access to the health insurance exchanges under the Affordable Care Act, including federal subsidies, if they are otherwise qualified for them. Farmworker Justice applauds the bill, which would have a great impact on the health of farmworkers and their families. While the bill is unfortunately not expected to move very far in this Congress, it sends a strong message about the need for a humane, fair approach to immigrants.


North Carolina Seeks to Ban Municipalities’ Community Trust Policies
The North Carolina legislature passed an anti-immigrant bill that would ban local government’s community trust policies that prevent local law enforcement officers from asking about a suspect’s immigration status and sharing immigration information with federal authorities. The bill would also limit the type of identification cards that government agencies may accept. Some law enforcement officers have stated that the inability to accept IDs from embassies and other institutions will require them to arrest people for driving without a license rather than issuing tickets. The bill would be harmful to communities as immigrants who are victims and witnesses of crimes will be less likely to come forward if they are unable to trust law enforcement officers. The Governor has not yet signed the bill. Contact the NC Justice Center for more information.


Farmworker Labor News

This month marks the 50th anniversary of the beginning of the Delano, California grape strike and boycott, when Larry Itlong and Pete Velasco led Filipino American farmworkers in a strike and asked the mostly Latino union led by Cesar Chavez and Dolores Huerta to join them. The two groups would later merge and form the United Farm Workers Union. The United Farm Workers held an event to commemorate the event in Delano.


Congratulations to the brave farmworker women and their attorney, Victoria Mesa, who won a $17.42 million in a sexual harassment lawsuit against Moreno Farms in Florida.

Farmworker Justice is pleased that the EPA issued an improved Worker Protection Standard (WPS) Monday and that it includes many important new protections from exposure to pesticides for farmworkers. Farmworker Justice has worked for many years to improve the WPS in collaboration with many organizations. Read Farmworker Justice’s statement here.
 

MPI Briefing on Farm Labor Highlights Recent Data Trends

The Migration Policy Institute held a briefing on September 16, 2015 titled “ What's New in Farm Labor? Immigration and the Agricultural Sector.” A recording of the briefing can be found here. The speakers included Philip Martin, Chair, UC Comparative Immigration & Integration Program, University of California, Davis; Tom Hertz, Economist, Rural Economy Branch, Resource and Rural Economics Division, Economic Research Service, U.S. Department of Agriculture; and Craig Regelbrugge, Senior Vice President, Industry Advocacy and Research, AmericanHort. Unfortunately, the panel on farm labor and immigration did not include a speaker providing the farmworker perspective, though Farmworker Justice’s Director of Immigration and Labor Rights, Adrienne DerVartanian, had the opportunity to speak briefly from the audience to identify issues important to farmworkers regarding the data and analysis.

The briefing largely focused on data trends in the farm labor market and whether there are indications that the farm labor market is tightening. The briefing also examined the potential impact of legalization of undocumented immigrants on retention of farmworkers as well as a brief discussion of the H-2A guestworker program and future-flow policy proposals.

Dr. Martin provided basic demographic data about the agricultural workforce, much of it derived from the National Agricultural Worker Survey (NAWS) and USDA data. Since 2004, agricultural employment has increased by about 6%. He noted the difficulty of quantifying the number of farmworkers and estimated roughly 1.2 million farm labor jobs and roughly 2.4 million farmworkers ( based on California’s Unemployment Insurance data of roughly 2 farmworkers for every full-time equivalent employee). However,, the rate of undocumented immigration has slowed. The NAWS reveals that there are fewer newcomers in agriculture (workers in the US for less than one year) with a drop from 20% in 2000 to 2% of the agricultural workforce in the latest NAWS data (2011-12). Roughly half of the current agricultural workforce is undocumented, with about 2/3 of foreign-born farm workers lacking immigration status. The remaining farmworkers are about 33% citizens, 18% lawful permanent residents and 1% having some other kind of work authorization. The workforce is also aging: the average age is now 37 and farmworkers tend to be more settled. More NAWS data is available in our factsheet. According to Martin, this data in combination with some other trends provide some indication that the labor market is tightening.

In addition to the above data, Martin pointed to an overall increase in farmworker income. Martin noted that while the data on wages indicates that wages are on average rising slightly, the data is “spotty” and inconsistent; with increases varying from year to year and state to state. Martin noted that the primary increase in income comes from an increase in the number of weeks worked per year, rather than a significant increase in the hourly wage. Tom Hertz pointed to evidence of a modest rising real hourly wage increase for farmworkers as compared to other workers with low education levels— 7% since 2001 compared to -2% for convenience store workers— but also noted the inconsistent data Martin had flagged. Unfortunately, despite this evidence of modest increases, farmworker wages are still very low, with an average wage of just $9.31 across the country or about $15,000-$17,000 per year, and with very little access to any benefits such as health insurance or paid sick leave. 

During the discussion on the tightening labor market, Prof. Martin pointed out that economic incentives in agriculture may create artificial labor shortages with farmers requesting too many workers and contractors promising too many workers too soon. This is how several agricultural counties in California can have unemployment rates over 20% with growers still claiming a “shortage.” Martin also presented data showing that growers in California are increasingly using farm labor contractors to supply their labor. Since 2007, more workers are being brought to California farms by farm labor contractors than are being hired directly.

Prof. Martin raised the question of whether increasing wages actually works, pointing to the belief among many farmers that increasing wages doesn’t attract workers (he questions whether increased wages attracts new workers or merely shifts workers between farms.) This is one place where a worker perspective in the discussion could have been helpful. It’s hard to imagine how increasing wages and offering other benefits would not attract workers; indeed, it is the very premise that drives much of the private labor market. Regelbrugge raised a concern about the feasibility of increasing farmworker wages, noting the global nature of the agricultural market and the increase of imports. Martin’s research actually includes a study noting that a 40% increase in farmworker wages poses little threat to US consumers or the export market, and would only increase US consumer household spending by about $16 per year. Additionally, consumers are growing increasingly conscious about the conditions under which their food is produced, as illustrated by supply chain projects such as the Equitable Food Initiative and the Coalition of Immokalee Workers’ Campaign for Fair Foods, both of which address wages and working conditions by working with corporations at the top of the supply chain.

Regarding H-2A workers, Martin noted the growth in the H-2A program, particularly in Washington and California, which grew from 4,400 worker positions certified in 2012 to 9,000 positions certified in 2014 and 3,000 H-2A positions certified in 2012 and 6,000 in 2014, respectively. Overall, the program has grown from roughly 75,000 positions certified in FY07 to an estimated 130,000 positions certified in FY15. Martin noted that many employers value their H-2A workers because they are “loyal” and do not switch to higher paying employers. Of course, H-2A workers have no choice but to be loyal because their nonimmigrant visa and ability to remain and work in the United States is tied to their employer. This dependence on their employers not only creates a market distortion but it leaves H-2A workers extremely vulnerable to exploitation. Because H-2A workers often pay recruitment fees to come to the United States, their debt can make them even more desperate to please their employers. As a result, H-2A workers will often work to the limits of human endurance to keep their employers --even the law-abiding, good employers—satisfied. Other elements of the H-2A program also cause H-2A employers to prefer their H-2A workforce to the domestic workers, including their ability to pick workers based on age, gender and race; the exclusion of H-2A workers from the Migrant and Seasonal Agricultural Worker Protection Act, one of the main federal protections for farmworkers; and the exclusion of H-2A workers from social security and unemployment taxes.

Tom Hertz also examined the impact legalization has had on farmworkers’ decisions to remain or leave agriculture and on their wages. At Farmworker Justice we have prioritized the issue of immigration reform because the undocumented status of the majority of farmworkers is a major contributing factor to the low wages, poor conditions and extensive illegal practices in agriculture. We believe immigration reform with a path to citizenship that includes the current undocumented and H-2A farmworkers is essential to stabilize the agricultural workforce and improve wages and living and working conditions for farmworkers

There is an assumption among some that farmworkers obtaining immigration status will leave agriculture. As a result, AgJOBS and other agricultural immigration compromises have included future work requirements for agricultural workers and have expanded employer access to guestworker programs. We believe many farmworkers value and enjoy their work, but simply want to be treated with respect and be able to support their families by earning a living wage with benefits. Moreover, many farmworkers may not have the networks, education or English skills needed to obtain many other jobs. Hertz’s extensive analysis of data shows that employer fears are likely overblown.

The data presented by Dr. Martin and Dr. Hertz are helpful in understanding the complicated nature of the US farm labor force. Immigration reform policies in agriculture addressing the future flow of immigrant farmworkers must strike a balance between ensuring enough labor while encouraging a stable agricultural workforce through higher wages and better working conditions for farmworkers and year-round (or closer to year-round) employment. Essential to these goals are a path to citizenship for the 11 million undocumented immigrants that includes farmworkers and their families, and policies that offer equal rights and promote respect and dignity for all farmworkers.
 

Farmworker Justice Immigration Update 9/11

Farmworker Justice Immigration Update Sept. 11, 2015

Congress Back in Session Congress returned from its August recess. Unfortunately, it is unlikely there will be much positive action on immigration for the rest of this year. In the few legislative days scheduled, Congress is likely to be consumed with funding the government for fiscal year 2016 amid threats to shut down the government.

The voluntary E-verify program and the EB-5 Investor Visa program are up for reauthorization this fall. Farmworker Justice will be on the lookout for harmful amendments that would affect farmworker families. Otherwise, Congress plans to continue with its efforts to pass enforcement-only legislation when it comes to immigration. For example, the Senate Judiciary Committee has rescheduled its markup of Senator Vitter’s (R-TN) Stop Sanctuary Cities Act, S. 1814, for Sept. 17th. As we mentioned in our last update, S.1814 would make it unlawful for state and local jurisdictions to fail to comply with federal immigration detainer requests. Violation of the law would make jurisdictions ineligible to receive certain federal funds. Farmworker Justice opposes this bill and other efforts to force localities to enforce immigration law, which undermine immigrants’ confidence in local law enforcement against criminals.

Presidential Campaigning and Immigration Unfortunately, the Republican Presidential primary campaign has taken a very anti-immigrant tone. Donald Trump has gotten a lot of attention for his anti-immigrant, anti-Mexico rhetoric and policy proposal for immigration reform. Trump scapegoats immigrants for the economic challenges that many Americans face. Trump wants to deport all undocumented immigrants, end birthright citizenship and lower the number of future immigrants allowed in the country, as well as make Mexico pay for a wall on our Southern border. Trump also wishes to impound remittances derived from the wages of undocumented Mexican immigrants until Mexico pays for the wall.

While Trump is currently leading the Republican presidential candidates, his unfavorable ratings are high among the rest of the population, the majority of whom support a legalization program with a path to citizenship.

Farmer representatives are quoted in a Politico piece, stating that Trump’s anti-immigrant rhetoric is “terrible for agriculture.” As usual, growers also complained about their supposed difficulty using the H-2A guestworker program. Growers typically complain about the H-2A program because they do not like the government oversight and modest Reagan-era wage and other protections intended to protect US and foreign workers. The protections are necessary because of the limited ability of guestworkers to protect their rights due to their guestworker status and dependence on their employers. Belying grower complaints about the H-2A program are the program statistics, which continue to show H-2A growth and high rates of approval of employers’ applications.

The American Farm Bureau Federation reported that it has worked all year with House Judiciary Committee Chairman Bob Goodlatte to advance an agricultural guestworker bill in the House; however, there is no indication he has any plans to move agricultural guestworker legislation forward. Remember, Goodlatte is the author of the horrible “Agricultural Guestworker Act” that passed out of his committee in 2013 (though the Farm Bureau did not endorse it). The Agricultural Guestworker Act would create a huge guestworker program with almost no worker protections and would require undocumented farmworkers to self deport and apply to become guestworkers without their families.

Trump’s immigration proposal is silent on the issue of guestworker programs for agriculture or other lesser-skilled jobs, but he has aligned himself with anti-immigrant groups and politicians that seek to lower overall immigration, including of guestworkers. The media has reported, however, that Trump’s businesses have hired guestworkers in the past.

Another Republican primary candidate, Ben Carson, who has been steadily climbing in the polls, recently criticized Trump’s plan to deport all undocumented immigrants. Instead, he proposes to make undocumented immigrants guestworkers. While Carson has not elaborated on the plan, guestworker status typically implies that people will not be on a path to citizenship. Moreover, as we know from our experience with the H-2 programs, guestworker programs are rife with abuses. When guestworkers are exploited, US workers are harmed as well by worsening wages and working conditions.

Failing to provide a path to citizenship would create a second-class of Americans, which is antithetical to our values as a nation of immigrants. Moreover, if Trump and other candidates succeeded in their stated goal of ending the Constitution’s guarantee of citizenship to those born in the U.S., they would create a permanent subclass of people living and working in this country. The solution for our broken immigration system must include a path to citizenship for the 11 million undocumented immigrants in the US.

H-2A Litigation Update: Two former H-2A sheepherders filed a complaint alleging price fixing in federal court in Colorado against two associations that bring in sheepherders largely from South America to work under the H-2A agricultural guestworker program. The complaint alleges that the two major associations, the Western Range Association and Mountain Plains Agricultural Service, colluded to keep prices down and US workers out of the market. Sheepherders under the program make around $2 to $3 an hour in most states, live in poor conditions and are often unable to leave the farm. The case is Rodolfo Llacua et al. v. Western Range Association, No. 15-cv-01889 (D.Colo.).

Farmworker Justice Immigration Update 8/07/2015

H-2 Guestworker News

BuzzFeed News published a must-read article on abuses of H-2 guestworkers, “The New American Slavery: Invited to the US, Foreign Workers Find a Nightmare.” The article highlights how the structure of the H-2A temporary agricultural guestworker program and the H-2B temporary nonagricultural guestworker program create extremely poor living and working conditions allowing for wage theft, sexual harassment and in the worst cases, allow for modern day slavery. We have heard that Buzzfeed is interested in additional reporting on the H-2A and H-2A programs.

The problems start for H-2 workers when they pay illegal recruitment fees for the opportunity to work in the United States and therefore arrive indebted and desperate to work to repay their debt. As a result, workers will often work to the limits of human endurance to keep their employers happy with their performance. They 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. Workers also fear being blacklisted the following year, which makes them unlikely to complain about working conditions or labor violations. H-2A agricultural workers also are excluded from the principal federal employment law for farmworkers, the Agricultural Worker Protection Act. The isolation of H-2A and many H-2B workers, who live in employer-provided housing in rural communities, exacerbate these problems.

When Congress turns back to working on comprehensive immigration reform, it must provide opportunities for foreign agricultural and other lesser-skilled workers who perform jobs vital to our economy to obtain legal permanent residence status and eventually citizenship.

In other H-2 worker news, the Southern Poverty Law Center reached a $20 million settlement on behalf of 200 Indian H-2B workers recruited to work for Signal International on the gulf coast after Hurricane Katrina. The workers paid tens of thousands of dollars in recruitment fees, were subject to wage theft and squalid living conditions, and were illegally detained by company security guards. The settlement came after a New Orleans jury awarded $14 million to five of the workers finding that Signal had engaged in labor trafficking, fraud, racketeering and discrimination. As part of the settlement, Signal also agreed to apologize to the workers. Congratulations to the workers, SPLC and its co-counsel on the case!

Congressional Attacks on Community Trust Policies

Much of the immigration news in recent weeks has focused on immigration enforcement. The murder of a woman in San Francisco by an undocumented immigrant who had recently been released from jail prompted Congress to hold hearings and work on legislation addressing the issue of local law enforcement cooperating with federal immigration enforcement officials. Federal immigration authorities had issued a detainer for the man, but a local ordinance prevents San Francisco authorities from detaining non-violent offenders on immigration detainers when they are otherwise eligible for release. Such policies, referred to as community trust policies, seek to encourage immigrant crime victims and witnesses to come forward without fear of immigration enforcement. Several recent proposals in Congress attack local jurisdictions’ community trust policies through legislation that would strip localities of federal money if they fail to enforce immigration laws. 

Many local law enforcement agencies have community trust policies that include guidelines for police officers’ conduct when interacting with immigrant community members. Such policies vary but they often limit police officers from asking people about their immigration status and the circumstances in which a law enforcement agency will turn immigrants over to federal immigration authorities. These policies make local areas safer. Community members are far less likely to come forward to report crimes and serve as witnesses if they perceive a risk of removal for themselves or their family members. Many local law enforcement agencies also argue that their limited resources should be focused on enforcing criminal laws and keeping communities safe. 

Some courts have found that local law enforcement agencies have violated people’s Fourth Amendment rights by detaining immigrants without probable cause in order to turn them over to federal immigration authorities. This prompted many local law enforcement agencies to create limited detainer policies that limit the circumstances in which they will detain immigrants with convictions in order to turn them over to Immigration and Customs Enforcement (ICE).

Community trust policies and limited detainer policies conflicted with the federal government’s Secure Communities program, which was heavily criticized for contributing to racial profiling, eroding trust of local law enforcement by immigrant communities and resulting in Fourth Amendment rights violations. In response to these critiques by law enforcement agencies, community members and immigrants’ rights groups, the Department of Homeland Security (DHS) terminated the Secure Communities program at the end of 2014 and announced the Priority Enforcement Program (PEP) to replace it. PEP aims to focus on the detention and deportation of immigrants convicted of felonies and certain other serious crimes, and those who pose a danger to the community or a threat to national security. PEP attempts to remedy the high probability of Fourth Amendment violations by requiring ICE to present probable cause that the person is removable and issue a request for notification rather than an immigration detainer unless there are special circumstances that would make a detainer preferable.

In July, the Migration Policy Institute released a report, “Understanding the Potential Impact of Executive Action on Immigration Enforcement” analyzing the potential effects of DHS’s shift in enforcement priorities and the change from the Secure Communities Program to the Priority Enforcement Program. The report states that under DHS 2014 enforcement priorities, 87% of undocumented immigrants would not fall into one of the deportation priorities outlined by the Department of Homeland Security. The MPI report also addresses DHS’s attempt to promote collaboration between ICE and local jurisdictions in a way that gives local jurisdictions more autonomy in how they manage ICE detainers. However, advocates remain skeptical about how PEP will be implemented.

Despite repeated assertions by ICE Director Sarah Saldaña and Secretary of DHS Jeh Johnson that DHS does not want to use a mandatory approach when dealing with local jurisdictions, the House Appropriations Committee voted to prevent jurisdictions that do not comply with DHS immigration mandates from receiving DHS grants, including FEMA funds. 

On July 23, 2015, the House passed H.R. 3009, the Enforce the Law for Sanctuary Cities Act, which would penalize jurisdictions that have community trust policies. The bill passed by a vote of 241-179 mainly along party lines with only six Democrats voting for the bill and five Republicans voting against it. HR 3009 would make state and local jurisdictions ineligible to receive “State Criminal Alien Assistance Program” funds if the local authorities follow any law, policy, or procedure that prohibits or restricts communication with DHS or other government entities regarding an individual’s citizenship or immigration status. The bill, authored by Representative Duncan Hunter (R-CA) also targets jurisdictions that prohibit state or local authorities from gathering information on an individual’s citizenship or immigration status. The Act would affect over 300 jurisdictions, including many localities that do not have community trust policies, but have policies aimed at protecting the Fourth Amendment rights of their community members. 

There are several similar bills being drafted by Senators. For example, Senator Vitter’s (R-TN) bill, the Stop Sanctuary Cities Act (S.1814), would make it unlawful for state and local jurisdictions to fail to comply with federal immigration detainer requests. Violation of the law would make jurisdictions ineligible to receive State Criminal Alien Assistance Program funds and chronic offenders would be ineligible to receive Byrne Memorial Justice Assistance Grant Program funds. The Senate Judiciary Committee was scheduled to mark-up his bill on Thursday but has postponed the markup until September. 

Senator Feinstein (D-CA) has also outlined a bill that would make compliance with ICE requests for notification mandatory for state and local jurisdictions. Senator Boxer (D-CA) is considering joining Feinstein on the bill. More than 50 California organizations wrote a letter to the Senators opposing the bill.

The proposed laws are problematic for the same reasons the Secure Communities program was considered controversial. Extended detention based on foreign birth or speculation of immigration status results in violations of the Fourth Amendment rights of individuals. Mandatory compliance erodes trust and goodwill between federal agencies and state and local jurisdictions as well as between community members and local law enforcement agents, eroding the safety of local communities. Farmworker Justice signed a letter by the American Civil Liberties Union signed by 139 organizations opposing the Stop the Sanctuary Cities Act.  

Farmworker Justice Immigration Update 7/20/15

Updates on Administrative Relief: Oral Arguments in the Texas v. United States case and Post-Injunction 3-year Employment Authorization Documents under 2012 DACA

On July 10, the United States Court of Appeals for the Fifth Circuit listened to oral arguments regarding President Obama’s DAPA and expanded DACA deferred action programs. The arguments are available here. If the Obama administration prevails and these programs are implemented, they would provide temporary, but renewable, relief from deportation for approximately 4.4 million undocumented immigrants currently living in the U.S. Roughly 700,000 undocumented farmworkers and their spouses are estimated to be eligible for DAPA or expanded DACA.1

Having heard the arguments, the three judge panel will now have to decide whether to keep in place the injunction issued by the district court in Texas or whether to lift the injunction and allow the programs to be implemented. The issues before the court are whether the state of Texas has standing for its lawsuit against the federal government and whether the claims presented by Texas and the other states are matters than can be decided by the federal courts. Alternatively, the Court can consider on constitutional grounds whether the president overstepped his authority when he created DAPA and expanded DACA programs. If the court finds that the President did overstep his authority, it would affirm the February injunction of the District Court that prevented President Obama’s plan from moving forward.

As to whether Texas and the states even have the power to challenge the federal executive branch's authority to regulate immigration (the “standing” issue), the arguments on that issue largely have centered on the costs Texas would incur by having to issue driver’s licenses to DAPA beneficiaries. Texas has said it would be a burden to have to pay at least $130 each for driver’s licenses for as many as 500,000 unauthorized immigrants who could obtain the licenses if they received deferrals under the president’s programs. Texas is arguing that the driver’s license costs are an injury that gives them the right to sue. Texas Solicitor General Scott Keller told the panel that the suing states will be harmed if the president’s policies are allowed to take effect, as they’d result in undocumented immigrants gaining lawful presence in the U.S and becoming eligible certain health-care benefits. 

On the other side of the arguments, the US Government’s lawyer (Benjamin C. Mizer, a principal deputy assistant attorney general) asked the panel to lift the injunction and clear the way for President Obama’s DAPA and expanded DACA programs. He noted that these programs are meant to protect qualifying immigrants from deportation and allow them to work in the country legally. Judges Smith and Elrod questionned the US government about its contention that the administration had ample authority to focus immigration enforcement on deporting immigrants who commit crimes or threaten national security, and to defer deportations of those who pose little risk to public safety and have families in the United States. Assistant Attorney General Mizer argued that both of the elements at the heart of Obama’s directive — stopping deportations and subsequently granting those immigrants work permits — were legally sound. Judge Elrod’s question in response underscored her skepticism - “So the secretary has boundless discretion to give work authorization to whomever he wants and it is not constrained by congressional law?”

Two of the judges on Friday's panel, Jerry Smith and Jennifer Walker Elrod, were in the majority on the panel that voted 2-1 in May against allowing the deferred action programs to continue pending the appeal of the injunction. In that prior opinion, they disagreed with the US Government’s contention that Texas had no standing. They also previously ruled that the Obama action was subject to judicial review under the federal Administrative Procedures Act (in other words, that the Obama Administration should have engaged in notice and comment rule-making to create the DAPA and expanded DACA programs), which the Justice Department disputes.

The July 10 oral arguments lasted for more than three hours. The judges did not say when a decision will be issued. Whoever the losing party is, it is likely they will appeal the decision. The losing party could seek “en banc” review by the 5th Circuit Court of Appeals; however, it is not clear that this would be advantageous for the US government to do. The next step would be a request for the Supreme Court to review the issue. The timing of the 5th Circuit’s ruling is important because of the limited intake of cases and calendar of the Supreme Court’s oral argument sessions as well as the upcoming presidential campaign. A decision from the nation’s highest court could come during the intensity of the 2016 presidential campaign. The last time around, after the appeals court considered the emergency request to stay the injunction, that ruling wasn’t handed down until more than a month after the oral arguments in April. It’s conceivable a final decision on the constitutionality of President Obama’s immigration executive order may not come until the summer of 2016.

DACA Post-Injunction 3-Year EADs

As we mentioned in our last update, the DACA 2012 program is not affected by the injunction and continues in effect. The only piece of the 2012 DACA program that has been impacted is the issuance by DHS of 3-year employment authorization documents (EADs) after the issuance of the injunction on February 16, 2015. The Judge has ordered DHS to show compliance with the injunction by July 31, 2015 and DHS is replacing the 3-year EADs issued or mailed after the injunction with 2-year EADs. Three year EADs issued or mailed to DACA recipients on or after the February 16, 2015 injunction must be returned to DHS. If DHS does not recover the 3-year EAD, it may call recipients and possibly conduct home visits to recover the 3-year EADs. It is very important that individuals who fall in this category return their 3-year EADs. DHS is threatening to take adverse action against those DACA recipients who fail to return their 3-year EADs, including the possible termination of DACA employment authorization, with possible negative future implications.

This recall does not apply to the approximately 108,000 three-year EADs that were approved and mailed by USCIS on or before the February 16, 2015, injunction date and that have never been returned or reissued by USCIS.

For those who would like assistance knowing whether the recall applies to their EADS, United We Dream has developed a tool for people to "screen" themselves: www.unitedwedream.org/uscisalert

Additional resources are available on USCIS’s webpage in English or Spanish

On CLINIC’s webpage in English and Spanish

And from NILC: http://nilc.org/nr071515.html.

 


1Ed Kissam and Jo Ann Intili, Number, Distribution, and Profile of Farmworkers Eligible for DAPA or DACA, (Revised/Expanded analysis), Werner-Kohnstamm Family Fund, Dec. 12, 2014, at p. 3, available at http://www.wkfamilyfund.org/docs/Profile-Farmworkers-Eligible-for-DAPA-or-DACA.pdf.

Farmworker Justice Immigration Update 7/10/15

Status of legal challenge to executive action on immigration

Yet another 4th of July passed without immigration reform, depriving millions of aspiring Americans of an opportunity to come forward and obtain protection from deportation and the ability to live and work in the United States without fear. Unfortunately, the road to relief may continue to be a long one.

The injunction preventing the implementation of President Obama’s immigration relief programs remains in place. Oral arguments on the appeal of the injunction were held today in the 5th Circuit Court of Appeals. The arguments are available here. Because two of the 5th Circuit Court of Appeals’ judges who ruled against the Obama Administration’s earlier request for an emergency stay of the injunction are on the panel that is hearing this appeal,the prospects for a favorable outcome are considered low. We cannot predict the timing of the 5th Circuit’s ruling. We do know, however, that the fight is not yet over. It is likely that either losing side will appeal the decision, possibly to the entire 5th Circuit Court of Appeals (called an en banc decision) and eventually to the Supreme Court. Unfortunately, the lawsuit has caused significant delays and is impeding the ability of eligible individuals to enroll in the DAPA and expanded DACA programs. Once we have had an opportunity to listen to the oral argument we will share any relevant observations with you. 

Remember that the DACA 2012 program is not affected by the injunction and continues in effect. The only piece of the 2012 DACA program that has been affected is the issuance of 3 year employment authorization documents (EADs) following the injunction in February. Three year EADs issued or mailed to DACA recipients on or after the February 16, 2015 injunction will be replaced with 2 year EADs and the 3 year EADs must be returned to DHS. There are roughly 2000 of these post-injunction EADs. Roughly 100,000 3 year EADs were issued prior to the injunction and those DACA recipients are not affected by this recall.

Actions in support of immigration relief and against family separation took place today in New Orleans and across the country. Farmworkers traveled to New Orleans with the UFW and UFW Foundation to join the actions. The actions are sending the message that we will continue fighting for immigration reform and that we will hold elected officials accountable for their actions and statements. More information is available at http://www.stopseparatingfamilies.org/events/.

What’s going on with Congress’s continued failure to pass immigration reform…

H-2A agricultural guestworker program

In June/early July, the U.S. State Department reported a glitch on their computer system to process visas, including H-2A visas. Several hundred H-2A guestworkers waited along the borders for days as the computer system was being repaired. Impacted employers protested loudly, pointing to a loss of profits. Of course H-2A workers were also suffering from these delays as they incurred costs for hotel and sustenance while waiting for the ability to travel to the United States and begin work (the employer is ultimately supposed to pay the costs but until that happens, workers carry the burden of the debt).

The back-up demonstrates what we already know: the H-2A program is not a solution to our nation’s broken immigration system. Congress must take action to enact comprehensive immigration legislation that provides a path to legalization for the roughly 11 million aspiring Americans, including farmworkers and their families. Immigration reform should also address the flawed H-2A program and should ensure that any future guestworker program includes a roadmap to citizenship, strong and equal labor protections, true economic freedom and mobility, and sensible limits.

State Legislation

While we would love for Congress to wake up to the realities on the ground and pass immigration reform legislation, it’s unlikely in the near future. We are already seeing Presidential candidates using the immigration issue to build their campaigns, most notably in the downright racist comments of Donald Trump, of which we are sure many of you are all too aware.

Some states have tried to take matters into their owns hands (remember Utah?) and now there is legislation in California that seeks to do just that-- Assembly Bill 20, authored by Assembly Member Alejo. Unfortunately, as currently framed, AB 20 is actually more like a grower-sought guestworker program than a legalization program that respects the contributions of agricultural workers. The legislation adopts grower critiques of the H-2A program, requires potentially eligible workers to meet a past and future agricultural work requirement (with none of the modest protections found in the H-2A program), and does not ensure that farmworkers have equal representation in process. As the symbolic legislation that it is (since it’s a state acting in a federally preempted sphere, which the bill acknowledges), the legislation and its symbolism should be based on immigration status and economic freedom, not a narrow “work permit” along the lines of a guestworker program that primarily serves the benefit of agricultural employers. 

Unionization and Litigation Successes Help Address Broken and Discriminatory System

The undocumented status of the majority of farmworkers is widely recognized as a major contributing factor to the low wages, poor conditions and extensive illegal practices in agriculture. Recent settlements and cases highlight the rampant abuses in agriculture but also point to successes in the courts. The U.S. Equal Employment Opportunities Commission (EEOC) settled for $330,000 a sexual harassment and retaliation lawsuit on behalf of 10 farmworkers against Zoria farms (which previously operated a dried-fruit processing company that was sold to Z Foods). The case alleges that at least four female workers were sexually harassed by two supervisors. Along with their coworkers, the women reported the issue; however, their complaints were not addressed by the company. Instead, the victims and coworkers who reported the harassment were not rehired when Zoria Farms was sold to Z-Foods. The case against Z Foods is still pending.

In a victory for farmworkers, the United Farm Workers and five workers settled lawsuits against the California Division of Occupational Safety and Health (Cal-OSHA) for neglecting its duty to enforce the Heat Illness Prevention regulations. The settlement will result in better enforcement of the heat protection regulations and better coordination with the UFW to ensure that farmworkers and other outdoor workers are protected from heat illness and death. More information, including an informational video featuring Secretary of Labor Perez and UFW President Rodriguez, is available on the UFW’s website.

In New Mexico, years of advocacy by the New Mexico Center on Law and Poverty has resulted in a decision by the state Court of Appeals that the exclusion of farm and ranch laborers from the Workers’ Compensation Act violates farmworkers’ rights to equal protection under the state Constitution. In reaching its decision, the court noted “[w]e fail to see any real differences between farm and ranch laborers and all other workers in New Mexico that would justify the exclusion.”

In Vermont, dairy workers with Migrant Justice are organizing for justice through the launch of a new campaign, Dairy for Dignity. The campaign seeks to improve living and working conditions for workers through a five-point plan that would include a farmworker authored code-of-conduct, farmworker education, and economic relief. Ben and Jerry’s has committed to working with Vermont dairy workers to adopt the Milk with Dignity campaign in its supply chain. Migrant Justice’s also recently released a survey of living and working conditions for dairy workers. The survey found that roughly 40% of Vermont’s dairy workers are paid under the Vermont minimum wage and have no day off per week. On average, the dairy workers surveyed worked between 60-80 hours per week.

Farmworker Movement in DC

Finally, we wanted to share that on July 3rd, the Smithsonian’s National Portrait Gallery opened their exhibit “One Life: Dolores Huerta,” focusing on Dolores Huerta’s work and role in the farmworker movement of the 1960s and 70s. If visiting with your Members of Congress is not reason enough for you to come to DC, this exhibit provides you another purpose for a trip to DC! As you may know, Farmworker Justice earlier this year created an annual Dolores Huerta Award.

Stay tuned for our next update, in which we plan to share more information and analysis about the DHS’s enforcement priorities. 

Farmworker Justice Update 6/12/2015

Status of Executive Action on Immigration

Millions of aspiring Americans await resolution of the lawsuit against President Obama’s DAPA and expanded DACA programs. As we shared earlier, the 5th Circuit Court of Appeals denied the Obama Administration’s emergency request for a stay of the injunction (requesting the court to allow the programs to proceed while the litigation is pending). The denial of the stay was disappointing but not conclusive, as it was an emergency motion in front of a very conservative panel of judges. While 2 of the 3 judges on the panel were conservative and voted to deny the stay, the 3rd judge dissented and sided with the Administration.

The appeal of the injunction is moving forward with a hearing scheduled for July 10. In a promising development, the appellate court’s order regarding briefing indicated that the judges that will hear the July 10 arguments do not feel bound by the decision denying the stay request. We do not yet know who the three judges on the panel will be. Unfortunately the 5th Circuit is considered the most conservative circuit in the nation.

The House of Representatives meanwhile, on an appropriations bill, voted to prevent the Obama Administration from using any funds to defend its immigration actions in the lawsuit. President Obama has already threatened to veto the spending measure due to domestic spending cuts.

Proposed Legislation on H-2A Agricultural Guestworker Program

Some members of Congress continue to show interest in the failed anti-immigrant, guestworker-only model, rather than seek a balanced solution that includes a path to immigration status and citizenship for undocumented workers. U.S. Rep. Rick Allen (R-Ga.), with the support of Rep. Sanford Bishop (D-Ga.) and 8 others introduced a bill, the BARN Act, that would slash needed protections in the H-2A program and remove important government oversight. The bill is similar to one introduced in the past by former Rep. Kingston (R-GA). Our summary of the bill can be found here. In the Senate, Senator Ron Johnson (R-WI) seems to hold a similar position, saying “[f]rom my standpoint, if you really want to secure our border, let’s eliminate or drastically reduce the incentives for illegal immigration, starting with a guest worker program.” In March, the Senate Homeland Security and Governmental Affairs Committee, which he chairs, held a hearing that focused on future guestworker programs. 

Guestworker Program Developments

Guestworker programs, by imposing a temporary, restrictive non-immigrant status deprive people of economic and political freedoms in violation of our country’s values of democracy. The Economic Policy Institute recently conducted a briefing highlighting a study showing that temporary foreign workers’ lack of bargaining power, due to their vulnerable status and dependency on their employers, results in low wages in comparison to those with immigration status and citizenship. Unfortunately we are seeing increased use of the H-2A program. 

DHS’s increased enforcement of immigration laws has been one factor leading to an increased use of the H-2A program. A recent fine of $2.25 million levied against Washington apple grower Broetje Orchards is one of the largest ever levied against an agricultural employer. Since the majority of farmworkers are undocumented, such enforcement is likely to lead more employers to use the H-2A program. 

Media Coverage and Recent Polling

Numerous recent news articles highlight the conditions in which farmworkers are living and working. In Kentucky, Southern Migrant Legal Services and the Kentucky Equal Justice Center filed three separate federal lawsuits on behalf of 39 Mexican guestworkers against six tobacco farmers for squalid housing conditions, back wages, and other violations.

Photographer and journalist David Bacon released a three parts series on the living conditions of farmworkers in California, specifically on their low wages and lack of health care, with a focus on the indigenous community. In Bacon’s first article, he discusses the low wage levels for farmworkers, noting that if (as proposed by the UFW in the late 90s) the price of a clamshell box of strawberries increased by just 5¢, the workers' wages would increase by 25%. Most consumers wouldn't even notice the increase, since the retail price normally fluctuates far more than that. The Coalition of Immokalee Workers has used this concept in their penny per pound campaign. Bacon’s second article shares the experiences of a Triqui farmworker and his family (the Triqui are indigenous people from the western part of the Mexican state of Oaxaca). The series concludes with the story of a Triqui farmworker mother sharing her work experience in the pea fields of California and the poverty and health problems she experiences due to her long hours in the field.

Despite the hostile attitude towards immigrants in Congress, there continues to be broad public support for a pathway to legal status for undocumented individuals. According to a recent Pew Hispanic Center poll, 72% of all Americans back a pathway to legal status for undocumented immigrants who meet certain requirements. 

Administration Coordination on Immigration/Labor Intersection

Immigration status is central to the ability of many farmworkers to feel empowered to assert their rights in the workplace and seek improved wages and working conditions. As part of the President’s November 2014 executive actions, the president created an Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws to address the intersection of employment and immigration enforcement. On May 8, the working group, which includes the DOL, DOJ, DHS, EEOC and NLRB, issued an action plan to achieve its goals to “enhance coordination in those cases where federal responsibilities to enforce labor, employment, and immigration laws may overlap, to ensure that workers who cooperate with labor and employment enforcement may continue to do so without fear of retaliation, to ensure that unscrupulous parties do not attempt to misuse immigration enforcement or labor laws to thwart or manipulate worker protections or labor and immigration enforcement, and to ensure the effective enforcement of these laws.” The action plan lists goals to accomplish or begin within the next 6 months, including “[c]lear explanations and methods for accessing any temporary or permanent immigration benefits or relief that may be available as the result of workplace violations or criminal activity in the workplace.” 

FJ believes that access to deferred action or other immigration relief is key to ensuring an improved ability for undocumented workers and guestworkers to assert their workplace rights without fear of immigration enforcement or other retaliation. We look forward to working with our colleagues to help make this a reality for those workers. For those of you on the ground, please share with us any recent examples where immigration enforcement (or fear of it) is interfering with workers’ exercising their rights. 

Farmworker Organizing

Mexican farmworkers in San Quintin Baja California, many of whom are also indigenous people from southern Mexico, organized and appear to have won major improvements that they hope to spread to other areas. While the agreement is a victory, there remain many challenges in implementation of the wage rates and the government’s assurances of social security and overtime (which many US farmworkers are still excluded from). The wage rates are an improvement but are not as high as the workers sought; moreover, they are still low in comparison to US farmworkers' wages for doing the same tasks on the same kinds of fruits and vegetables that are exported to the US and that we pay US prices for. 

Finally, in an event showing the shared struggles in agriculture around the globe, the International Labor Rights Forum held a conference on June 3rd titled Hasta La Victoria! Farm Worker Justice in Global Supply Chains.” The panels, which included FJ’s Bruce Goldstein,, focused on challenges to securing worker rights in agriculture, and labor organizing in the tobacco industry in North Carolina and Malawi. U.S. Representative Marcy Kaptur (D-OH), delivered the keynote speech. The two featured speakers, who were also honored during the ILRF’s evening award dinner, were Baldemar Velasquez, President of the Farm Labor Organizing Committee, AFL-CIO, and Raphael Sandramu, General Secretary of the Tobacco and Allied Workers Union of Malawi. 

Farmworker Justice will continue its efforts toward a justice immigration system. Please keep with us on our blog, Facebook, and twitter feed. Many materials on immigration, labor, occupational safety, and health are on our website, www.farmworkerjustice.org.  

New Research Shows Guestworkers and Undocumented Workers Both Vulnerable in Workplace: Highlights the Need for Immigration Reform that Provides True Immigration Status with a Path to Citizenship

Research presented at a recent panel organized by the Economic Policy Institute underscores the need for comprehensive immigration reform with a path to lawful permanent resident status (LPR) and eventual citizenship. The research demonstrates the precarious position in which both temporary workers and undocumented workers find themselves in the workplace, where they lack bargaining power due to their vulnerable immigration status and dependency on their employers. Legal status with a path to citizenship can help farmworkers and other workers improve wages and prevent the exploitation of undocumented workers and guestworkers by unscrupulous employers (collective bargaining agreements, like those negotiated by the farm labor union FLOC on behalf of H-2A guestworkers, can empower workers to combat the effects of the H-2A visa’s restricted status).

All Immigration Status Is Not Equal: Temporary Legal Status Is Not Sufficient to Improve Wages

For those who are familiar with the challenges facing undocumented workers and guestworkers, the findings from the research are not surprising. According to research by Lauren Apgar, a PhD candidate in Sociology at the University of Indiana Bloomington, both temporary workers and undocumented workers earn significantly less than LPRs. On average, H-2 workers and undocumented workers earn 11% less than LPRs. The research also demonstrated that despite the fact that temporary workers have work authorization, there is no statistical difference between their wages and the wages of undocumented workers.

With regard to H-2A workers specifically, Apgar’s research found that with variables such as trip characteristic and human capital held constant, undocumented workers and H-2A workers earned about 26 to 30 percent less than LPRs; with H-2A workers’ total monthly earnings closer to those of undocumented workers than to LPR earnings. This changed somewhat when factoring in the value for the free housing provided to H-2A worker by their employers. With the addition of an added value for housing, wages for H-2A workers were closer to the wages for LPR workers. The research did not, however, factor in the recruitment costs many H-2A workers pay for the opportunity to work in the United States. Despite the fact that such fees are illegal under the H-2A program, the payment of recruitment fees is rampant. The desperation many H-2A workers feel to repay the recruitment fee debt increases their vulnerability on the workplace. 

In examining factors contributing to lower pay for temporary and undocumented workers, the research notes that despite temporary workers’ legal status, they lack mobility in the workplace and their ability to work in the United States is tied to the employer who brought them into the United States. Because H-2A workers are dependent on their employer for their continued employment, housing, and legal status in the United States, they are less likely to raise concerns or complaints for fear of losing their employment and legal status. Specifically, Apgar notes that “both legal status groups are subject to employer exploitation because they fear retaliation and deportation, and employers take advantage of this fear to pay them the lowest possible wage.”

These findings are significant as we experience a dramatic growth in the H-2A program. The H-2A program, which has no limit on the number of H-2A visas that can be issued per year, more than doubled in size in recent years. The program increased over 140%: from about 48,000 worker positions certified in FY 2005 to about 117,000 worker positions certified in FY 2014. From FY 2013 to FY 2014, several states saw significantly large increases in program usage, including an increase of 17% in North Carolina, 35% in Florida, 44% in California, and 45% in Washington. Despite loud employer complaints about the “bureaucracy” of the H-2A program (really their barely veiled dislike of DOL oversight and the program’s minimal worker protections, as well as housing and transportation costs), the broken immigration system combined with the opportunity to select and control their workforce is enticing more and more growers to the H-2A program.

The H-2A program is designed to protect the wages and working conditions of U.S. workers but Apgar’s research points to major structural flaws in the H-2A program and raises important questions about the adequacy of its protections. These findings should also be important considerations as Congressional members yet again propose harsh one-sided guestworker programs as the way forward on our broken immigration system and agriculture.

The ability to pay unauthorized and H-2A workers significantly less than LPRs leads to lower wages for all workers in a workplace that is largely dependent on undocumented workers. Research presented by Tom Hertz of the Economic Research Service at the U.S. Department of Agriculture highlights this point. Hertz examined the National Agricultural Workers Survey (NAWS) data and found that unauthorized workers earn 4% less than LPRs and 8% less than naturalized citizens. While the wage data for undocumented and LPR workers shows a smaller wage differential than in Apgar’s research, this can be explained by the fact that Hertz controlled for other characteristics which impact wages, such as years of education and English-language skills. While it may seem surprising that the wage differential for undocumented workers and those who are LPRs and naturalized workers is not greater; one factor may be the fact that the presence of so many undocumented workers has saturated the workforce and resulted in a wage depression that is felt across the industry. Furthermore, despite employers’ claims of labor shortages in the fields, conditions are so bad for all farmworkers that there is little upward pressure on their wages—if there really were a dire labor shortage, the first economic indicator one would expect to see is rapidly increasing wages paid to workers.

Impact of Legalization on Farm Labor Force: Many Agricultural Workers Will Remain in Agriculture after Employment Authorization

Hertz also examined the impact of legalization on the workforce. Hertz found that most workers who legalized in 1986 under IRCA remained in agriculture after legalization, despite stagnant wage rates. IRCA’s primary impact was to accelerate the departure of the 20% of workers who likely were planning to leave agriculture anyway. This research belies the widespread assumption that most agricultural workers will leave agriculture if given a legal status.

The study of farmworker employment post-IRCA provides a rough guide to how today’s farm labor supply would respond to the legalization of a portion of unauthorized farmworkers. Hertz noted that, for instance, if half of current farmworkers are unauthorized and half of them are granted employment authorization through DAPA/DACA, this may cause farm labor supply to decline by 5% over 5 years. This is a far cry from the belief that legal protections will leave farmers with “nothing to replace [their workers] with.”1

In conclusion, the research demonstrates the need for immigration reform that provides a path to citizenship—rather than temporary and contingent legal statuses that facilitate exploitation and abuses—and thus highlights the problems that a guestworker approach presents.

See also this article from In These Times: http://inthesetimes.com/working/entry/18008/guestworkers_and_unauthorized_immigrants_report.


 1Dan Charles, Farmers Fear Legal Status for Workers Would Lead Them off the Farm, NPR (Feb. 26, 2015) http://www.npr.org/sections/thesalt/2015/02/26/387698016/do-your-veggies-depend-on-workers-who-lack-legal-rights.

Temporary Injunction Remains in Place for Now with 5th Circuit Divided Decision to Deny of DOJ’s Request for Stay

Farmworker Justice is deeply disappointed by the 5th Circuit’s decision today to deny the Department of Justice’s request to stay the temporary injunction of DAPA and expanded DACA. This decision means continued delays in the implementation of the expanded DACA and the DAPA programs that could provide relief for 4-5 million hard-working parents and Dreamers of the United States. The decision comes exactly one week after the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA) was supposed to begin.

This ruling 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 full appeal is still pending and is tentatively scheduled for oral argument in early July. The decision does not affect the current DACA program announced in 2012, which is still in effect and accepting new applications and applications for renewal.

While disappointed, Farmworker Justice is not deterred. We will continue to defend President Obama’s administrative actions until the fight for administrative relief is successful. Roughly 700,000 farmworkers and their spouses could be eligible to come forward to apply for temporary protection from deportation and work authorization under the deferred action opportunities. The programs are well within the President’s authority and are a limited but important step toward addressing our broken immigration system. 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.

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 and other aspiring Americans.

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