Immigration and Labor Rights

Farmworker Justice Immigration Update 6/14/16

Mourning the Victims of the Attack in Orlando

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


Businesses Lobby Against Worker Protections in the H-2 Programs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appropriations Bills Contain Harmful “Riders”

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

Scare in DAPA/DACA Lawsuit Resolved Temporarily

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

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

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

 


 

Farmworker Justice Immigration Update 5/27/16

Unprecedented growth in the H-2A program continues as does abuse of workers

The Buzzfeed series on the H-2 programs has highlighted abuses of both guestworkers and domestic workers. Recently Buzzfeed published another great piece, “The Pushovers.” The article sharply criticized the Department of Labor (DOL) for continuing to allow employers to use the H-2A program even where they have been found to violate the program terms, including criminal violations. Central to the article is the H-2A farm labor contractor, Vasquez Citrus & Hauling, which was involved in a bus accident that occurred last year, killing six H-2A workers. The contractor was underinsured in violation of the DOL’s regulations and the driver of the bus did not have a proper license to transport workers. Yet, Vasquez Citrus & Hauling was allowed to bring in more workers this year.

We agree with Buzzfeed that DOL must beef up its enforcement and debarment of bad actors. We continue to advocate for increased and improved enforcement by the DOL, and the resources to do so. One example of the kind of enforcement we need to see more of is a recent investigation by DOL of Red Diamond Farms and its owner. The Department’s Wage and Hour Division (WHD) found violations of H-2A program rules protecting U.S. workers, including by offering H-2A workers more hours and failing to offer domestic workers in corresponding employment the proper H-2A wages, free housing and transportation. DOL also found violations of the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Workers Protection Act and assessed significant civil money penalties totaling $1,488,800 for the violations due, in part, to the employer’s efforts to impede DOL’s investigation by denying the presence of domestic workers and segregating their payrolls from the H-2A workers. DOL’s increased assessment of civil money penalties is key to deterring future misconduct in agriculture, where there is inadequate enforcement and we often see repeat offenders. DOL also stated that it is seeking to debar the employer from the H-2A program. The employer plans to appeal the findings.

It is noteworthy that the DOL listed the grocery stores that buy Red Diamond Farms’ tomatoes. WHD Administrator David Weil has written and advocated for a supply-chain approach to wage and hour enforcement, a policy that he has been implementing at the agency. In agriculture, the need for this approach is evident with high rates of violations on farms where profit margins are small and there is little control over the market prices of fruits and vegetables. Supply chain projects such as the Equitable Food Initiative and the Fair Food Program recognize this dynamic and the power of consumers in efforts to improve conditions on the farm.

In its own defense, the Buzzfeed article notes that DOL states “it has made ‘a serious and sustained effort’ to protect both guest workers and U.S. workers but added that many of those efforts have ‘been under constant attack from powerful industry groups seeking to undermine these protections.’” This is absolutely true. Employer associations that use the H-2 programs are constantly lobbying in Congress and asking their Congressional representatives to write letters to the DOL and meet with senior department staff to discuss “problems with the programs.” In the case of the H-2B program, employer associations have sued the agency repeatedly to strip worker protections from the program. When they have lost, they have gotten Congress to strip protections through the appropriations process.

The most recent set of attacks center around complaints of delays in the processing of H-2 applications. Yet, DOL’s statistics show a timeliness rate of 90% for the H-2A program, with many of the delays actually resulting from deficiencies in the applications. While there may be some truth to some claims of delays, many are largely overblown and must be placed in the broader context of growers’ longstanding demands to undermine the DOL’s much-needed oversight of the H-2A program, where abuse of US and temporary foreign workers is extensive. DOL plays the critically important role of ensuring that employers are recruiting domestic workers at market wages and working conditions.

Despite their complaints about the H-2A program’s costs and bureaucracy, employers reap the benefits of employing these vulnerable workers. U.S. workers often are unwelcome at H-2A employers because they have the freedom to switch jobs and are more likely to challenge unfair or illegal conduct or join a union. For more information, read our factsheet on the H-2A program.

Two Atlanta Journal-Constitution articles provide an example of the media and grower attacks DOL faces. The first article provided a very one-sided critique of DOL’s processing of H-2A applications. In the second article, “Expecting labor help, South Georgia farmers get inspections instead” (May 10) , the author made serious allegations without any evidence that the DOL had investigated farms in retaliation for Georgia growers’ complaints about processing delays in the H-2A agricultural guestworker program. The notion that the slow-moving Federal Labor Department could (or would, see Buzzfeed article above) respond in one week to Georgia growers’ complaints published the previous week is also ludicrous. It may make headlines to demonize federal civil servants who simply seek to enforce the minimum wage and other basic labor protections that are in longstanding laws, but it’s offensive and inappropriate. We and others who assist farmworkers know that violations of the minimum wage and other basic labor protections that do apply to farmworkers are very common.

Despite the H-2A program’s rapid growth, Congress has not increased the DOL’s resources to administer the program and fulfill its obligations to prevent and remedy labor violations. In fact, the Department’s budget for processing applications for labor certification has decreased since 2012. While employers must pay fees to participate in the H-2A program, DOL is not able to keep those fees. The President's FY2017 budget contained recommendations to Congress to allow DOL to retain the H-2A fees, and to appropriate more money to DOL to administer the program.

Ultimately, of course, we urgently need immigration reform. The hundreds of thousands of currently undocumented farmworkers and their family members should be given the opportunity to apply for legal immigration status and citizenship.


Looking to the future, if this country needs immigrant workers to work our fields and ensure a prosperous agricultural sector, they should be offered the opportunity for permanent immigration status and citizenship, and not be limited to a restricted guestworker status. Farmworkers deserve not only to have labor rights that are effectively enforced but also fundamental economic and democratic freedoms.

Victory for blueberry workers in California!

Workers at a blueberry farm, Klein Management Company, in McFarland, California successfully went on strike and voted to unionize, joining the UFW. As detailed in an article by David Bacon, the workers went on strike after their piece rates were lowered. Congratulations to them!

Overtime bill for farmworkers in California

There has been a lot of media attention on DOL’s recent overtime regulations lifting the threshold for overtime, but farmworkers are excluded from overtime under the Fair Labor Standards Act. There is now legislation in California that seeks to address this discrimination against farmworkers. In case you haven’t seen it, check out this great editorial in The Los Angeles Times calling for overtime pay for farmworkers in California.


 

Farmworker Justice Immigration Update 4/22/16


Monday, April 18th, 2016 marked a historic day for the immigrants’ rights movement, when thousands of advocates nationwide traveled to the Supreme Court to rally in support of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, which would grant temporary relief to millions of undocumented parents, and the expansion of the Deferred Action for Childhood Arrivals (expanded DACA) program. Inside the Supreme Court, the justices heard oral arguments in United States vs. Texas, the case that has temporarily suspended the implementation of DAPA and expanded DACA.


The Rally in Front of the Supreme Court of the U.S.

The brisk early morning air quickly warmed up once Kica Matos, the Director of Immigrant Rights and Racial Justice at the Center for Community Change and the MC for the day, took the stage and electrified both the massive crowd and atmosphere with excitement, hope, and perseverance. The steps of the Supreme Court were crowded with immigrant families and advocacy groups from over 26 states who filled the air with passionate chants, cheers, and music to send a clear message to the Court – treat our families with the respect and dignity we deserve. Read one attendee’s New York Times Op-ed titled, What I Will Do When I Get My Papers.

The powerful rally was fueled and propelled by inspirational speeches, heart-wrenching stories, and powerful music that symbolized the diversity of the larger movement. Speakers included immigrant and labor rights activists, members of Congress, and most importantly, undocumented youth and parents, who shared personal stories and urged the Supreme Court to vote to keep families together. The collective energy at the rally was at a constant high as fellow advocates met one another and rallied together in solidarity.

Many advocates and affected community members camped outside the Supreme Court the night before so they could attend the oral arguments. An estimated 45 immigrant families attended the oral argument, as did many lawyers from immigrants’ rights organizations.

The Oral Argument in the Supreme Court

In addition to hearing from lawyers for Texas and the Federal Government, the Justices heard from Tom Saenz, President and General Counsel of the Mexican American Legal Defense and Educational Fund who represents 3 mothers who would be eligible for DAPA and are intervenors in the case. Counsel for the US House of Representatives (controlled by Republicans) was also given time to argue on the side of Texas that the programs should be permanently blocked.

Attorneys who attended the arguments have said that the Solicitor General and MALDEF did a good job defending the legality of the programs and arguing against Texas’s standing (right to sue based on a tangible harm) in the case. Most of the time during oral argument was spent discussing standing. There was also significant legalistic discussion around whether deferred action is a “status” and the meaning of “lawful presence” that highlighted just how confusing and complex immigration law is.

In an apparent dramatic development in the Supreme court, Texas seemed to have shifted its argument away from arguing that the Federal Government lacks authority to grant deferred action to a large number of people. Now it is arguing primarily that the Government doesn’t have authority to offer work authorization. One major problem with this argument is that the regulation that allows people with deferred action to apply for work authorization has been on the books since 1987. In addition, many other classes of people under immigration law receive work authorization under this regulation such as people with Temporary Protected Status or applicants for asylum. Invalidating that regulation would upend the immigration system and affect millions of other immigrants. For more information on the issues discussed during the oral argument, listen to AILA’s webcast or read the American Immigration Council’s blog.

What’s Next

It’s very hard to predict outcome of this case. Justices Ginsburg, Breyer, Sotomayor and Kagan appeared to be squarely on the side of the Federal Government. In one potential outcome, the five or more justices will decide that Texas and the other states lacked standing, the case will be thrown out and the programs would be likely to move forward sometime this summer. Since Justice Scalia passed away, there is another likely scenario, where there will be a 4-4 tie among the justices. In this scenario, the lower court decision suspending the programs would not be overturned and the case would be remanded – or sent back -- to the appellate court and district court for further litigation over the issues, which could last for another year or more. We expect a decision by the end of June. If there is a 4-4 decision, it may be released sooner.

Farmworker Justice Immigration Update 2/26/16

National Hispanic Leadership Agenda Issues Quadrennial Hispanic Public Policy Agenda

Immigration policy is among the issues discussed in the report, subtitled “Blueprint for Advancing the Latino Community,” by the 40-organization coalition. Farmworker Justice is on the Board of Directors of the NHLA. The report covers a range of issues, including economic empowerment and labor, health, education, civil rights, environment and energy and government accountability. It is intended to inform elected and appointed government officials, candidates for office, think tanks, advocacy groups and many others.

The Supreme Court and Executive Action on Immigration

As you are probably well aware by now, the vacancy on the Supreme Court left by Chief Justice Antonin Scalia’s death, has turned into a political brawl. The Constitution requires the President to appoint Supreme Court Justice’s “with the advice and consent of the Senate.” Normally, the Senate Judiciary Committee holds a hearing on nominees before the whole Senate votes on the nominee. It is not clear when the vacancy will be filled but it is highly unlikely to be filled before the Supreme Court hears US v Texas, the case on the legality of the DAPA and expanded DACA programs.

So what does the vacancy mean for DAPA? If the Federal Government wins US v. Texas, then the case will likely end, and DAPA and expanded DACA would be implemented, most likely in the late summer. If there is a 4-4 tie by the Justices, then the lower court ruling would stand (although the case would not be considered a precedent for other cases in the future). In this case, the 5th Circuit upheld the order temporarily preventing the Obama Administration from implementing DAPA and expanded DACA, so the programs would remain blocked. The case would then go back to the Texas District court and continue. Judge Hanen in the Southern District of Texas is likely to turn the temporary injunction into a permanent injunction (a court order preventing the programs from being implemented) and the Federal Government could appeal the case back up to the Supreme Court if they choose to. By then we would probably have a new president and a new Supreme Court justice. The lawsuit over DAPA and expanded DACA as well as the programs themselves, would only continue if the new President wants to implement the programs (Clinton & Sanders have promised to do so, the other candidates have criticized the programs). Overall, we still remain hopeful that the Federal Government will win at the Supreme Court this spring and President Obama will implement the programs promptly.

Familias Unidas por la Justicia

Ramon Torres, president of Familias Unidas por la Justicia, a farmworker labor union in Washington State was in Washington, DC last week to gain support for their boycott of Driscoll’s berries and deliver a letter to the Department of Labor on behalf of the union’s members. Familias Unidas is a union of farmworkers who are organizing to form a collective bargaining agreement with Sakuma Brothers Farms, a Washington berry grower. In the 2014 growing season, Sakuma Brothers Farms applied for H-2A temporary agricultural workers and Familias Unidas produced 400 hundred letters from domestic workers who planned to return to work for Sakuma Farms that season. Sakuma Farms ultimately withdrew its application. Last year, Familias Unidas delivered members’ promises to work for Sakuma in anticipation of Sakuma applying for H-2A workers and Sakuma Farms said that they would not use the program. This year, Familias Unidas is again prepared to show that there are sufficient domestic workers to serve the needs of Sakuma Farms.

Agricultural employers may only apply for H-2A workers if they can show that there is a labor shortage. Employers may not use the program to break a strike.

Presidential Candidates, Farmworkers and Immigration Policy

Arturo Rodriguez, President of the United Farm Workers, published an op-ed in the Huffington Post entitled, “Questions Farm Workers Have for Bernie Sanders.”

Other H-2A Program News

Reuters investigated the shady foreign labor recruiters who recruit workers to come work in the US in the H-2 programs. The article highlights Nestor Molina, a recruiter who extracted thousands of dollars in illegal fees from Honduran H-2A workers, and has been able to skirt law enforcement and civil suits.

Farmworkers and the Minimum Wage

This op-ed in the Portland Tribune by Ramon Ramirez, president of the farmworkers’ union Proyecto Campesinos Unidos del Noroeste (PCUN) and a member of Farmworker Justice’s Board of Directors, and Andrea Miller, executive director of Causa Oregon, an immigrant rights organization, titled “My view: the minimum wage is a racial justice issue.” The authors reminded the Oregon Legislature, which was considering legislation to increase the minimum wage, that people of color are more likely than others to make the minimum wage and therefore, live in poverty. They urged the Legislature not to exclude groups of workers, such as farmworkers, that are predominantly comprised of people of color, from an increase in the minimum wage. Last week, the legislature approved the increase, with Gov. Kate Brown’s approval. By 2022, the state’s minimum wage will rise to $14.50/hour in the Portland area, $12.50/hour in rural areas, and $13.25/hour elsewhere.

Beware of High School Diploma Scams

Please see the Federal Trade Commission’ warning page about high school diploma scams. Immigrants who are interested in enrolling in an education program and applying for DACA should be warned against such scams. Note that people who are otherwise-eligible for DACA can enroll in English-language classes or adult education or vocational classes to satisfy the education requirement. Programs that receive federal, state or local government funding or are administered by a nonprofit are likely to be eligible. If you need assistance determining whether an educational program is a scam or are interested in finding out whether an educational program run by a nonprofit could satisfy the DACA education requirement, contact here.
 

Digging Deeper: The Real Reason the H-2A Program is Expanding in Florida

This week NPR aired a story "Guest Workers, Legal Yet Not Quite Free, Pick Florida's Oranges” that featured an H-2A worker, otherwise known as an agricultural guestworker.

In an interview at the beginning of the program, a grower of Florida citrus said that his farm started using H-2A workers to avoid competing for workers who were asking for a higher wage. The farm didn’t want to pay an extra nickel a box that farmworkers asked for and that a competing grower was offering. This frank statement reveals the fundamental problems with the temporary foreign worker program.

The guestworkers don’t ask for wage increases.  Why?  Because as the story reveals, guestworkers don’t have the freedoms that we take for granted in this country.
 
H-2A guestworkers may only work for the one employer that obtained a visa for them.  When the job ends, they must return to their homeland.  If they want to return to the US, they must hope that the employer will invite them back and apply for a visa.  The workers have no independent ability to apply to the US government for an H-2A visa.  Technically, they hold a “non-immigrant” status.  And the law refers to these human beings as being “imported” by employers.  As if they are commodities.
 
In this restricted, temporary status, the workers will not usually challenge unfair or illegal conduct, or even ask for a raise.  They feel lucky to have the job.  And why not?  Usually, the wage is a lot higher than they would make in their own country.  So they will often work to the limits of human endurance.  Growers will say how “reliable” they are, but what is really going on in many cases is that these workers are under such pressure that they are extraordinarily productive. 
 
The story discusses the issue of who is better (or worse) off, a guestworker or an undocumented immigrant worker.  That’s a time-honored debate.  The guestworkers are taken advantage of and so are undocumented workers, but the undocumented workers are, in a sense, free.  They can change jobs, though that is often difficult. 
 
The story does a good job of demonstrating the lack of economic freedom in guestworker programs.  There is also a fundamental lack of political freedom.  No matter how many years the guestworkers are brought back to the U.S., they never earn the right to become an immigrant or a citizen.  Guestworkers don’t vote.  But the employers vote.  And the employers give campaign contributions.  And the employers lobby Congress and the Administration to lower the required wage rates and other obligations under the H-2A program.
 
The H-2A program is supposed to prevent employers from undermining the wages and working conditions of U.S. farmworkers’ job terms.  But the law and regulations generally don’t work.  The lack of economic and political bargaining power on the part of the guestworkers is just too much to overcome.
 
We are a nation of immigrants, not a nation of guestworkers.  The workers we need in this country – and we need farmworkers – should be given the opportunity to be immigrants and citizens.  Because the majority of farmworkers are undocumented immigrants, Congress should pass immigration reform that creates such opportunities and grants farmworkers the economic and political freedoms on which this country was founded.
 

Immigration Update 1/15/2016

Raids
Unfortunately, the Department of Homeland Security brought in the new year with a campaign to aggressively round up immigrants from Central America- who are primarily women and children - for deportation. The Department of Homeland Security and President Obama have come under sharp attack for the raids. The aggressive raids may re-traumatize families who may have been victims of violence in their home countries or during their journey to the United States.

When President Obama announced his executive actions on immigration, he said that he would be deporting “felons not families.” Yet, this operation targets a vulnerable population of women and children. While the targets of the raids may technically fall into DHS’s new enforcement priorities—those that received final orders of deportation issued on or after January 1, 2014—targeting this population is wrong. These families are fleeing some of the most violent countries in the world.

It’s also important to note that these families did not enter the country illegally. They presented themselves at the border seeking asylum, as is their right under the law. Some targets of the raids didn’t have access to counsel and therefore lacked a meaningful opportunity to seek asylum. The families of some of those detained have reported that their loved ones did not know that they had a deportation order. The immigration system is complicated and without counsel many of the refugees may not have even understood that they were required to appear in court. Missing a court date often automatically results in a deportation order. Other immigrants may have had inadequate legal representation. At least 33 people arrested in the raids have received a stay of removal from a judge, in part for claims of ineffective assistance of counsel.

The Guardian confirmed several instances in which Central Americans have been killed soon after being deported home, and reports that there may be more. The Central American refugees are fleeing real danger in their home countries of Honduras, Guatemala and El Salvador. Many organizations are asking the U.S. government to offer temporary protected status to individuals from these countries until conditions in those countries improve. The United Nations will begin screening people for refugee status in the three Central American countries

The raids are causing fear and harm among people in immigrant communities and should be stopped. Information on know-your-rights and how to report a raid are available on NILC’s website

DAPA: Executive Action on Immigration 

The Supreme Court is convening Friday to review cases that are seeking certiorari (a request for review) at the Supreme Court. We are cautiously optimistic that the Court will decide to hear Texas v. US, the case that suspended implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded DACA programs. For the case to be heard, four out of the nine justices must agree that they want to hear the case. We are hopeful that the case will be heard and scheduled for briefing and a hearing this April, and result in a decision by the end of June. Though the outcome is uncertain, we are also hopeful that the Supreme Court will decide in favor of the Federal Government and allow DAPA and DACA plus to be implemented. Chief Justice Roberts and Justice Kennedy are likely to be the swing votes in the case. 

Immigrants’ rights groups have kicked off a week of action urging the Supreme Court to take up the case. Many amicus briefs by different groups are being organized in support of the deferred action programs. Farmworker Justice plans to sign on on to one of the briefs as it did when the case was heard at the Fifth Circuit Court of Appeals. 

Farmworker Justice continues to prepare for implementation of DAPA and expanded DACA through active work in the Coalition for Immigration Reform Implementation (CIRI) and the Si Se Puede network. You can register for CIRI’s Ready America conference to prepare for implementation to be held on February 3-5th here. A limited number of scholarships are available for the conference. 

The H-2A Program
An employer association and large H-2A employer, WAFLA (formerly known as the Washington Farm Labor Association), is under investigation by the Washington Attorney General’s office for its efforts to direct employers on how to answer the Washington State prevailing wage/working conditions survey. WAFLA is the second largest employer of H-2A workers in FY2015, having received labor certification for 7,895 H-2A workers, and also advises employers on how to use the H-2A program. WAFLA has recently expanded its operations beyond Washington to Oregon, California and Michigan. The survey is used to establish the prevailing wage rate, one of several enumerated wage rates in the H-2A program (employers must pay the higher of the federal or state minimum wage, the Adverse Effect Wage Rate, or the local prevailing wage, which may be an hourly wage or a piece rate) and certain other job terms in employers’ applications for H-2A temporary agricultural workers.

In September, WAFLA held webinars and posted videos and documents directing employers to put specific answers that would adversely affect wages and working conditions on the prevailing wages and working conditions survey. The Washington State employment agency (ESD) made preliminary findings that WAFLA’s instructions biased survey results. Farmworkers Justice has been assisting advocacy groups in Washington, led by Columbia Legal Services, and including the Northwest Justice Project, the Washington State Labor Council, and the National Employment Law Project. In addition to advocacy in Washington State where the Attorney General’s office has an investigation underway, the organizations sent a letter to the Department of Labor requesting an investigation to ensure that accurate prevailing wages and working conditions for this season are set. This situation clearly illustrates that in order to get accurate wage and practices information, workers must be surveyed as well as employers. 

Finally, in case you missed it, Buzzfeed published an article over the holidays called the Coyote. The article details Stan Eury’s abuse of the H-2 programs for his personal gain, resulting in a criminal sentence that includes prison time.  

12/17 Immigration Update: Congress's Spending Bill Will Remove Labor Protections from Guestworker Program

Congress has come to a bipartisan agreement on a spending bill to fund the government for the rest of FY2016 and a tax bill that makes permanent some tax breaks for individuals and corporations. Farmworker Justice is extremely disappointed that the appropriations bill contains harmful policy “riders” that will prohibit the Department of Labor from using funds to implement important worker protections in the H-2B non-agricultural temporary foreign worker program. One result will likely be to lower wages for H-2B guestworkers and US workers that work alongside them.

The H-2B program riders will affect forestry workers (who are brought in under the H-2B program but are considered agricultural workers under other laws) as well as landscaping, food processing, hospitality and construction workers. In addition to changing the wage formula, which will likely lower wages in most instances, the riders will prevent DOL from requiring additional recruitment of US workers based on labor market history and from auditing employers’ recruitments. The riders also strip protections for US workers in “corresponding employment” so that very few US workers will be entitled to the same wages and working conditions as H-2B workers that they work alongside. The bill defunds the ¾ minimum-work guarantee, which requires employers to pay H-2B workers for at least 75% of the hours they are promised over a 12 week period. This rule aims to curb the practice of hiring excess H-2B guestworkers and then offering them little to no hours. The bill also effectively enlarges the program by exempting H-2B workers who came in FY2013, FY2014 and FY2015 from being counted toward the annual cap on the number of H-2B visas.

Farmworker Justice opposes expansion of guestworker programs outside the context of comprehensive immigration reform and opposes the removal of labor protections in the H-2B program, which is rife with abuse. Placing these substantive immigration and labor changes into must-pass appropriations bills in order to avoid the legislative process and input from workers, their advocates and the public is shameful.

Farmworker Justice worked through the International Labor Recruitment Working Group Advocacy Committee to oppose these harmful provisions. We thank Senators Richard Blumenthal (D-CT), Bernie Sanders (D-VT), Dick Durbin (D-IL), Elizabeth Warren (D-MA), Jeff Merkley (D-OR), Mazie Hirono (D-HI) and Al Franken (D-MN) who sent a letter to Senate leadership and top appropriators opposing the H-2B riders. However, it was an uphill battle with many Republicans and the top Democratic appropriator, Senator Barbara Mikulski (D-MD), championing the cause of businesses that seek to lower their labor costs and hire vulnerable guestworkers. The ILRWG also sent an organizational sign-on letter in opposition to the riders and released this statement on the appropriations bill. Our previous blog on the H-2B proposals describes the House and Senate bills that would further and permanently strip protections in the H-2B program.
While the tax bill makes permanent important tax credits for families (along with some corporate credits) and postpones the “Cadillac tax,” a tax on expensive health care plans (a priority for some unions with generous health care plans that were bargained for in lieu of higher wages or other benefits), it also contains some harmful provisions that will negatively affect some immigrant and mixed status families.

Both bills are expected to pass and be signed by the President before Congress goes on recess for the holidays. The appropriations deal will avoid a government shutdown. The appropriations bill is expected to rely heavily on Democrats voting in favor of it to pass, which gave them significant leverage in the negotiations process.

As Daniel Costa’s Economic Policy Institute blog explains, there is no evidence of a labor shortage in the industries that use the H-2B program. Even if there were such evidence, there is no valid justification for lowering wages, stripping protections from vulnerable workers, and facilitating hiring vulnerable guestworkers under substandard conditions. Congress should be focused on creating a path to immigration status and citizenship for undocumented workers and opportunities for better job terms for workers in these industries. Foreign workers should not be treated as commodities. When foreign workers are needed, they should be treated with dignity and offered strong labor protections and the opportunity to obtain greencards. We are a nation of immigrants not a nation of guestworkers.

As a final note, if you haven’t already, you should read the Buzzfeed articles on the H-2 agricultural and nonagricultural temporary worker programs. The first, “The New American Slavery: invited to the US foreign workers find a nightmare” focuses on the abuses of H-2 guestworkers, while the second “All you Americans are fired” focuses on the harm caused to US workers by the program.

Give thanks to farmworkers this Thanksgiving!

Several quality news articles in the past few weeks included stories that remind us of the hard work of the workers who plant, harvest and process our food. They also highlight challenges that farmworkers face as a result of poor wages and working conditions, inequality resulting from lack of immigration status and disempowerment in the political system, and structural racism.

As you plan, prepare and enjoy your Thanksgiving meal, here is some food for thought. Around 2.4 million farmworkers labor on US farms and ranches. According to 2011-12 data from the National Agricultural Workers Survey (NAWS), about 71% of farmworkers who work in crop production are immigrants. At least half, or 1.2 million farmworkers, are undocumented.

Farmworkers’ average total individual income (including farm and nonfarm work) is $15,000-$17,499. The average farmworker family’s total income is $17,500- $19,999. The federal poverty level for a family of 3 was $19,090 in 2012. Twenty-five percent of all farmworkers had a family income below the federal poverty line. However, because the survey results did not include dependents living outside of the United States, this number may not completely reflect the number of families living in poverty.

There is evidence that undocumented farmworkers make less than their documented coworkers, in part because the better jobs go to those with status, and in part due to the higher instances of wage theft that they experience. This must-read Guardian article, which profiles the US’s poorest border town, Colonia Muniz in the Rio Grande Valley of Texas, describes the exploitation of undocumented workers there. The article features an undocumented farmworker, Theresa Azuara, a member of La Union del Pueblo Entero, (LUPE). Theresa describes an instance in which an agricultural employer didn’t pay her at all for two weeks of work. “She said she accepted exploitation as a part of the price of being in the US illegally until she started to attend meetings of [LUPE].”

The Desert Sun recently finished a 3 piece series titled “Death in the Sun” which profiles the large numbers of deaths and illnesses from heat stress in agriculture, the passage of the recent California heat stress legislation and advocacy to prevent heat stress illness.

On a lighter note, NPR’s morning edition is doing a series on the foods of the season and the people behind them. The first story profiles a farmworker, Jose Martinez, who migrates to pick apples in Pennsylvania. Jose’s children attend East Coast Migrant and Seasonal Head Start programs in the different locations where they live throughout the year.

This week’s story focuses on the sweet potato harvest. NPR interviewed a couple, Nabor Segundo and Rosalia Morales, who come to North Carolina from Florida for to work in sweet potatoes and tobacco. Nabor describes the arduous nature of picking sweet potatoes. Nabor and Rosalia also have children in the migrant head start programs.

There is a nice op-ed from our friends at CAUSE in Santa Barbara County, California, "Extend Gratitude to Farmworkers: The Food on our Tables is Picked by People Overworked and Underpaid."

Finally, an interview with “Eric Schlosser on the People Behind Our Food” in Civil Eats offers some solutions to people interested in supporting workers in the food system. Schlosser urges readers to support food workers by fighting for an increase in the minimum wage, support companies that are treating workers well and “fight against the demonization of immigrants in this country. Speak out against the demagogues who are trying to get votes by scapegoating some of the poorest and most hard-working people in the United States.” Farmworker Justice couldn’t agree more.

As you enjoy your Thanksgiving meal, honor all of the workers who made your meal possible. Farmworkers and other food sector workers deserve to be treated with dignity and respect. We therefore appreciate the food magazine, Bon Appétit, for encouraging its readers in its holiday giving article to assist farmworkers by donating to Farmworker Justice.

We appreciate your support for the work of Farmworker Justice. Our policy analysis, advocacy, litigation, education, training, public education and coalition-building empower farmworkers to build a brighter future.

Happy Thanksgiving!
 

Farmworker Justice Immigration Update 11/20/2015

On One Year Anniversary of the President’s Executive Action, Immigrants Wait for Relief

On November 20, 2014, in response to strong organizing and calls for relief by the immigrants’ rights community, President Obama announced a series of administrative actions aimed at addressing our broken immigration system. Farmworker Justice is deeply disappointed that two key actions, the creation of the DAPA (Deferred Action for Parents of Americans) program and expansion of the DACA (expanded Deferred Action for Childhood Arrivals) program, remain in limbo. One year later, millions of potentially eligible families are still waiting for the relief that they need to live in peace, free from the fear of deportation, and to contribute more fully to their communities.

Today we moved one step closer to resolution of the Texas v. US lawsuit with the Department of Justice filing its petition for review in the Supreme Court. The Supreme Court may choose whether or not to review the 5th Circuit Court of Appeals decision upholding the district court’s injunction (order) blocking expanded DACA and DAPA. The Texas v. U.S. lawsuit against the Obama Administration’s DAPA and expanded DACA programs and the ensuing injunction reflects judicial intervention in a political dispute between the Executive Branch and states that disagree with the President’s immigration policy. Farmworker Justice believes the injunction was issued in error and that the ongoing delays perpetuate our terribly broken, inhumane immigration system and stop the federal government from exercising its proper authority. We commend the Department of Justice for its prompt action to seek review of this case in the Supreme Court and we hope the Court will swiftly accept and rule on the case. Farmworker Justice participated in an amicus curiae brief to the Fifth Circuit Court of Appeals and plans to do so for the Supreme Court case as well. We are optimistic that the Supreme Court will rule with the Administration.

DAPA and expanded DACA are vitally important to farmworker families, their communities and the agricultural system. Together, the programs could provide relief to an estimated 700,000 farmworkers and their family members. At least half the farm labor force is undocumented, which contributes to the low wages and labor abuses in the fields. With protection against the constant fear of deportation, farmworkers and other aspiring Americans will be empowered in their workplaces and communities.

Jaime Diaz’s story, published in a Miami Herald op-ed last year, provides just one example of a farmworker whose family could benefit from DAPA. Jaime and his wife have been cultivating and harvesting crops for some 20 years in the United States. With DAPA for Jaime and his wife, Jaime’s family would feel secure and his children would no longer have to fear the police as agents of family separation via deportation. Jaime and his wife and others like them feed us and benefit our economy; they deserve better.

Enforcement Priorities
One successful aspect of the administrative relief is the Department of Homeland Security’s memo that outlines new immigration enforcement priorities. Much work still needs to be done to make sure that the guidelines are followed by enforcement officers and careful consideration is given to exercise prosecutorial discretion in individual cases.

Administrative Action Needed to Curtail Retaliation Against Immigrant Workers

Farmworker Justice joins other allies in continuing to push for workers’ rights by supporting a roadmap to citizenship and urging the Administration to fulfill its goal of “protect[ing] all workers from exploitation and workers’ rights violations, regardless of immigration status.” To support the latter goal, President Obama’s administrative actions included the creation of the Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws (“Interagency Working Group”).

The Interagency Working Group’s tasks include the important objective of “strengthen[ing] processes for staying the removal of, and providing temporary work authorization for, undocumented workers asserting workplace claims and for cases in which a workplace investigation or proceeding is ongoing.” While Farmworker Justice and other groups have participated in two stakeholder sessions, we still await concrete actions addressing these issues. Additionally, we hope that the Administration will issue memorandums of understanding between DHS and various federal and state government agencies, such as the NLRB, EEOC, and California’s ALRB.

We are disappointed at the lack of progress on these actions. Meanwhile, workers who seek to improve their working conditions continue to face threats of immigration enforcement in the workplace. In a meatpacking plant in Illinois, ICE conducted an investigation and raid while workers were in the midst of negotiating a new union contract. More about UNITE HERE!’s campaign on behalf of these workers can be found here.

Integral to democracy and human rights is the protection of all workers’ rights. And when some workers at an employer can be intimidated by threats of immigration enforcement, all workers at that employer can lose bargaining power. We urge the Obama Administration to use its remaining year in office to improve protections and establish clear procedures to encourage immigrant workers to exercise their workplace rights and ensure that they are protected from retaliation when they do so. This is extremely important in agriculture where the majority of workers are undocumented.

On this one-year anniversary of President Obama’s executive action on immigration groups across the country are engaged in actions to call for immigration relief and to make clear this is a battle that will continue until we have won immigration reform with a path to citizenship for the 11 million aspiring Americans. For more information on events in your area, please check the Alliance for Citizenship webpage: http://www.allianceforcitizenship.org/calendar.


 

Farmworker Justice Immigration Update 11/20/2015

On One Year Anniversary of the President’s Executive Action, Immigrants Wait for Relief

On November 20, 2014, in response to strong organizing and calls for relief by the immigrants’ rights community, President Obama announced a series of administrative actions aimed at addressing our broken immigration system. Farmworker Justice is deeply disappointed that two key actions, the creation of the DAPA (Deferred Action for Parents of Americans) program and expansion of the DACA (expanded Deferred Action for Childhood Arrivals) program, remain in limbo. One year later, millions of potentially eligible families are still waiting for the relief that they need to live in peace, free from the fear of deportation, and to contribute more fully to their communities.

Today we moved one step closer to resolution of the Texas v. US lawsuit with the Department of Justice filing its petition for review in the Supreme Court. The Supreme Court may choose whether or not to review the 5th Circuit Court of Appeals decision upholding the district court’s injunction (order) blocking expanded DACA and DAPA. The Texas v. U.S. lawsuit against the Obama Administration’s DAPA and expanded DACA programs and the ensuing injunction reflects judicial intervention in a political dispute between the Executive Branch and states that disagree with the President’s immigration policy. Farmworker Justice believes the injunction was issued in error and that the ongoing delays perpetuate our terribly broken, inhumane immigration system and stop the federal government from exercising its proper authority. We commend the Department of Justice for its prompt action to seek review of this case in the Supreme Court and we hope the Court will swiftly accept and rule on the case. Farmworker Justice participated in an amicus curiae brief to the Fifth Circuit Court of Appeals and plans to do so for the Supreme Court case as well. We are optimistic that the Supreme Court will rule with the Administration.

DAPA and expanded DACA are vitally important to farmworker families, their communities and the agricultural system. Together, the programs could provide relief to an estimated 700,000 farmworkers and their family members. At least half the farm labor force is undocumented, which contributes to the low wages and labor abuses in the fields. With protection against the constant fear of deportation, farmworkers and other aspiring Americans will be empowered in their workplaces and communities.

Jaime Diaz’s story, published in a Miami Herald op-ed last year, provides just one example of a farmworker whose family could benefit from DAPA. Jaime and his wife have been cultivating and harvesting crops for some 20 years in the United States. With DAPA for Jaime and his wife, Jaime’s family would feel secure and his children would no longer have to fear the police as agents of family separation via deportation. Jaime and his wife and others like them feed us and benefit our economy; they deserve better.

Enforcement Priorities
One successful aspect of the administrative relief is the Department of Homeland Security’s memo that outlines new immigration enforcement priorities. Much work still needs to be done to make sure that the guidelines are followed by enforcement officers and careful consideration is given to exercise prosecutorial discretion in individual cases.

Administrative Action Needed to Curtail Retaliation Against Immigrant Workers

Farmworker Justice joins other allies in continuing to push for workers’ rights by supporting a roadmap to citizenship and urging the Administration to fulfill its goal of “protect[ing] all workers from exploitation and workers’ rights violations, regardless of immigration status.” To support the latter goal, President Obama’s administrative actions included the creation of the Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws (“Interagency Working Group”).

The Interagency Working Group’s tasks include the important objective of “strengthen[ing] processes for staying the removal of, and providing temporary work authorization for, undocumented workers asserting workplace claims and for cases in which a workplace investigation or proceeding is ongoing.” While Farmworker Justice and other groups have participated in two stakeholder sessions, we still await concrete actions addressing these issues. Additionally, we hope that the Administration will issue memorandums of understanding between DHS and various federal and state government agencies, such as the NLRB, EEOC, and California’s ALRB.

We are disappointed at the lack of progress on these actions. Meanwhile, workers who seek to improve their working conditions continue to face threats of immigration enforcement in the workplace. In a meatpacking plant in Illinois, ICE conducted an investigation and raid while workers were in the midst of negotiating a new union contract. More about UNITE HERE!’s campaign on behalf of these workers can be found here.

Integral to democracy and human rights is the protection of all workers’ rights. And when some workers at an employer can be intimidated by threats of immigration enforcement, all workers at that employer can lose bargaining power. We urge the Obama Administration to use its remaining year in office to improve protections and establish clear procedures to encourage immigrant workers to exercise their workplace rights and ensure that they are protected from retaliation when they do so. This is extremely important in agriculture where the majority of workers are undocumented.

On this one-year anniversary of President Obama’s executive action on immigration groups across the country are engaged in actions to call for immigration relief and to make clear this is a battle that will continue until we have won immigration reform with a path to citizenship for the 11 million aspiring Americans. For more information on events in your area, please check the Alliance for Citizenship webpage: http://www.allianceforcitizenship.org/calendar.


 

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