PRODUCE LAW: Crackdown on undocumented workers places additional emphasis on H-2A compliance

[EDITOR’S NOTE: This month’s Produce Law column comes to us from Amy L. Peck, a Principal in the Omaha, NE, office of Jackson Lewis P.C. She dedicates her practice exclusively to immigration law and worksite compliance and is co-leader of the firm’s immigration practice group. Ms. Peck is a member of the AILA National Verification Committee, which liaises with USCIS, ICE and OCAHO on I-9, E-verify and related worksite issues. She received her law degree from the University of Nebraska College of Law]

The persistent labor shortage in U.S. agriculture is well-documented, as is the farm industry’s reliance on foreign workers. Even as President Donald Trump cracks down on undocumented workers as he promised during his campaign, his administration and Congress recognize farmers’ need for foreign workers on the H-2A temporary visa.

In his first days in office Trump signed two Executive Orders designed to keep undocumented workers out of the United States and to deport undocumented workers currently living in the United States.

The Border Security and Immigration Enforcement Improvements Order directed the Department of Homeland Security (DHS) to start the process of constructing a border wall (a contiguous, physical wall or other similarly secure, contiguous, and impassable physical barrier) between the U.S. and Mexico, as well as to hire 5,000 new Border Patrol agents.

The Enhancing Public Safety in the Interior of the United States Order expanded the categories of individuals subject to deportation and directed DHS to hire 10,000 additional immigration officers to carry this out.

The H-2A visa process is full of inefficiencies (e.g., no electronic filings) and Trump appears to know this from personal experience. Over the years, Trump Wineries has used H-2A workers from Mexico to tend its vineyards in Virginia. In a draft Executive Order on foreign worker visa programs, Trump calls on the Secretary of Homeland Security to provide a list of options for ensuring the efficient processing of petitions for H-2A nonimmigrant agricultural visa program while maintaining programmatic integrity.This positive note stands out even as the Administration generally seeks to limit visa programs in order to protect U.S. workers. (The draft was not officially released and has not been signed.)

Congress also is interested in fixing the H-2A visa program. In January, two Representatives from New York, Elise Stefanik and Chris Collins (both Republicans), introduced the Family Farm Relief Act of 2017. The Act would:

• Move the H-2A program to the Secretary of Agriculture to from the Secretary of Labor
• Allow on-line applications
• End burdensome requirements on advertising and prevailing practice surveys
• Allow farm cooperatives and other agricultural associations to apply for workers for their members
• Include dairy and other year round livestock operations in the H-2A program
• Eliminate the 50% Rule that gives job preference to U.S. workers
• Require reporting to Congress if delays occur in the H-2A visa application process.

Previously, in June 2016, more than 100 Congresspersons sent a letter to the Department of Labor and the U.S. Citizenship and Immigration Services regarding the unacceptable delays and regulatory roadblocks in the H-2A program. They urged the agencies to expeditiously process agricultural employers’ H-2A applications where possible [because] [o]ur farms, our economies, and the livelihoods of our constituents depend upon timely application processing and visa issuance in advance of farmers’dates of need.

Moreover, Trump’s Secretary of Agriculture, Sonny Perdue, a champion of selling U.S.-grown agricultural products to the world, was asked about the H-2A visa program during his nomination hearings. Senator Patrick Leahy (D-Vt.) said the program does not work for dairy farmers because it included only seasonal workers. Perdue responded that he would counsel for including those year round workers. He later told Senator Kristen Gillibrand (D-N.Y.) that he would work on this post haste if confirmed. It appears that Perdue may be an advocate for improvements in the H-2A program.

Despite these advances, farmers need to be prepared for the consequences of the Trump Administration’s emphasis on immigration enforcement.

U.S. Immigration and Customs Enforcement (ICE) is expected to prioritize prosecuting employers who knowingly hire illegal workers by aggressively conducting Form I-9 Employment Eligibility Verification investigations. Steep fines, administrative penalties, and even asset forfeiture or criminal penalties (in the most egregious cases) are possible outcomes. ICE, however, has been known to be more lenient with employers who have taken steps to review, and when necessary, update their compliance programs to correct inadvertent errors and prevent future violations. Therefore, the best way to reduce exposure is to conduct a comprehensive audit of Form I-9 Employment Eligibility Verification documentation and institute best practices.

ICE also could conduct a worksite raid or investigation looking for undocumented workers who are subject to deportation. Employers often are unaware of employees who are not lawfully working because employers are not usually experts in conducting forensic evaluations of work authorization documents and, even having followed all of the correct Form I-9 procedures, may have hired individuals based upon documentation that went unrecognized as false. There may be workers on payroll who are subject to deportation for committing what might seem to be minor criminal infractions or immigration status violations. Worksite investigations can lead to potential civil and criminal charges, therefore it is essential to consult with counsel on these matters.

While many industries are preparing for changes and cuts that may make it more difficult to hire foreign workers in the Trump Era, the farming industry actually may see improvements in the H-2A visa program. Still, it will be important to prepare for the flip side — compliance and aggressive enforcement against undocumented workers.