Commentary: Helping farm employers navigate immigration changes
By Bryan Little
Farm Bureau advocates a two-part approach to modernize federal immigration law in order to help both employees and employers on American farms.
President Donald Trump has acted quickly to fulfill campaign promises to remove unauthorized immigrants already in the U.S. and discourage others from emigrating without authorization. Two executive orders issued in January were followed by memoranda from Department of Homeland Security Secretary John Kelly to define for DHS agencies such as Immigration and Customs Enforcement and the Border Patrol how the orders are to be carried out.
The executive orders significantly broaden circumstances under which an unauthorized immigrant may be apprehended and deported. For example:
- Any immigrant in the country without authorization who is charged or convicted of any offense, has committed acts for which he or she could be charged with a crime, is suspected of a crime, or who an immigration officer deems a risk to public safety or national security will be prioritized for removal.
- The orders end a "catch-and-release" policy of releasing apprehended unauthorized immigrants within the U.S. and detaining immigrants who have crossed the border without authorization, pending a deportation hearing.
- Federal agencies will create regulations and policies allowing them to collect fines and penalties from immigrants and from people "who facilitate their unlawful presence," and to prioritize removal of immigrants who have engaged in "fraud or willful misrepresentation in connection of any official matter before a government agency."
Taken together, it appears these two directives could prioritize assessing penalties against employers who may have facilitated the presence of unauthorized immigrants by hiring them knowing they were not employment-eligible, and prioritize the removal of employees who offered fraudulent documents to complete the I-9 process to obtain employment in the U.S.
- The orders authorize the hiring of 10,000 additional ICE agents and 5,000 additional Border Patrol agents.
- A federal program will be expanded that encourages cooperation between local law enforcement and federal immigration enforcement agencies.
- The orders authorize construction of a border wall and necessary infrastructure.
Many implications of the orders remain to be played out, such as:
- Whether ICE will begin large-scale apprehensions of suspected unauthorized immigrants in areas distant from the border;
- Whether ICE will begin significant new worksite enforcement, including I-9 audits;
- Whether Congress will begin serious discussions about immigration reform.
There has been much congressional interest in an enforcement-only approach to immigration reform, including building the wall and requiring mandatory, universal use of the DHS E-Verify system, which can verify the authenticity of many (but not all) identity and work eligibility documents.
What does the future hold?
The California Farm Bureau Federation, American Farm Bureau Federation and many other organizations have long recognized that agriculture depends on a foreign-born workforce. These farm employees provide their employers with identity and work-eligibility documents that appear authentic in order to complete a Form I-9 when their employment begins, but which in fact aren't authentic.
Employers are not required to be "document cops" or to be trained to recognize inauthentic documents; in fact, asking too many questions about documents presented by a new employee can lead to a lawsuit against the employer, alleging employment discrimination.
Because of this "catch-22" situation, Farm Bureau advocates a two-part approach to modernize immigration law in order to help employees and employers on American farms:
- Create a form of legal status that allows current agricultural employees to continue to provide Americans with high-quality food at reasonable prices. Farmers need employees who can live and work securely, continue to fill key jobs on farms, pay taxes, buy goods in local stores, and come and go across the U.S.-Mexico border to visit family and friends without fear.
- Create an agricultural "guestworker" program that will be easier, simpler and less expensive to use than the current one. A program should allow employees and farmers the option of contracting with each other for agricultural work, or should allow approved U.S. farmers to hire any employee legally admitted to work on farms.
Since the early stages of his campaign, President Trump has said he wants to build a border wall, but that there should be doors in the wall to allow entry of people whose presence will benefit our country and our economy. The reality of food production and the agricultural workforce is clear: Americans' food will likely be grown, harvested and processed in the future by the same people as today; the only question is whether the farms they work on will be in the U.S. or in Mexico.
In recent days, I have received numerous calls and emails from farmers who report their employees are worried. The farmers want to know what their employees should do, regardless of their legal status; what farmers can do to help their employees; and what farmers should do in their role as employers.
Many organizations and agencies have prepared information that is widely available on the Internet, advising immigrants on their legal rights and how they should handle an encounter with law enforcement.
Farm employers can begin now to review their practices when creating, maintaining and storing Forms I-9, and be ready to comply with ICE requests to audit I-9s.
Farm Bureau's affiliated company, the Farm Employers Labor Service, furnishes subscribers and clients with technical assistance and information to enable them to assess their compliance with employment eligibility requirements. For more, including information on subscribing to the FELS Newsletter, see fels.net.
(Bryan Little is director of employment policy for the California Farm Bureau Federation and chief operating officer of the Farm Employers Labor Service.)
Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.