California ag seeks passage of AgJOBS
In the wake of the release of the Department of Homeland Security's final Social Security number no-match rule, agricultural groups believe passage of AgJOBS legislation becomes more important than ever. The bill would let a large share of the work force earn legalization and make the existing H-2A temporary worker program user-friendly for farmers and employees.
"Certainly the no-match announcement complicates matters and we believe that it could detract from efforts to get AgJOBS and immigration reform legislation passed," said California Farm Bureau Federation President Doug Mosebar. "As far as we're concerned, AgJOBS legislation is still the key. AgJOBS will allow us to have a legal work force and establish a workable guestworker program."
Key legislators on Capitol Hill, including Sen. Dianne Feinstein, D-Calif., are discussing moving AgJOBS through the Senate as a freestanding piece of legislation once the senators return from recess, said Jack King, California Farm Bureau Federation Manager of National Affairs.
Even with a continued interest to move AgJOBS, the fact remains that the DHS no-match rule formally takes effect on Sept. 14. At the same time, the Social Security Administration will resume sending no-match letters to employers. Each letter will include a message from Immigration and Customs Enforcement advising how to respond to it. DHS Secretary Michael Chertoff stated that SSA plans to send about 15,000 letters per week for the next 10 weeks. Letters will be for no-match information for employees who were employed during 2006.
"There is no question that the Bush administration's first preference would be that Congress act on immigration legislation, but it's also clear that it is responding to those who say we need to start with border enforcement," King said.
During an American Farm Bureau Federation conference call held last week, Farm Bureau leaders from across the country heard from top White House and DHS officials. During the call, Farm Bureau leaders questioned them about the no-match rule and its implications for agriculture nationwide, AgJOBS legislation, and the Bush administration's plan to streamline the existing H-2A program.
"At this point we have to get clarification on the rules while making our best case for the problems we face," said King.
The White House official who participated in the conference call said that, "(Implementing) this (no-match rule) was not an easy decision to make. I think everybody on the president's team spent a lot of time thinking about the consequences. We felt like we didn't have much choice in this, even recognizing the consequences."
He added that the only way to fix the problem is to encourage Congress to act since it is the only body that has the authority to put a temporary worker program in place. The DHS official added, "It is certainly not with any enthusiasm that we contemplate what this rule could mean for the agriculture sector."
The DHS official reviewed the safe-harbor steps an employer receiving a no-match letter must follow if he wants to guarantee that DHS will not use it as evidence that he knowingly employed illegal workers. These involve: 1) The employer checks his records for an error; 2) If he finds no error, the employer asks the employee to confirm that the employee's name and number in the employer's records are correct; 3) If the employee says they are correct, the employer asks the employee to resolve the issue with SSA and then tries to verify with SSA the employee's name and number within 90 days of his receipt of the no-match letter; and 4) If the employer cannot verify the name and number by then, the employer and employee have three days to complete a new Form I-9 for the employee as if the employee were newly hired (with some exceptions); otherwise, the employee must be fired.
The DHS official told Farm Bureau members on the call, "if employers follow (the safe-harbor procedures) then they can avoid the risk that these letters will be used as evidence that they knew they had illegal workers. That is an important protection for the employer," he said. "If the employers ignore these, or don't follow the procedures we've laid out, then they are at risk that we will use the letters as evidence that they knew or should have known that their employees were illegal."
When asked whether the rule requires employers to take any particular action or are these merely reasonable-care guidelines, the official responded that the safe-harbor procedure, "is not a requirement. However, if you don't take action, we are going to draw the conclusion that you violated the law intentionally, that you knew it was a person who was illegal."
For seasonal employees who work for only a short period of time and move on, the DHS official said, if the employer receives a no-match notification letter in this instance, "if they are not working for you now, you can't be held liable…." But employers will be held liable if that particular employee is hired every year and every year the employer receives a no-match letter.
Karen Ross, president of the California Association of Winegrape Growers, said the winegrape sector has a big percentage of year-round workers, but growers in certain parts of the state also need seasonal workers for pruning, tying, leaf pulling and harvesting.
"To qualify for safe-harbor, employers are going to do what they've always been required to do, only this time there is verification and a time specification on it. Employers will do what they have to do and that means very likely by the end of the year, right when we are looking at pruning season starting in January and February when there is that spike in the need for people, that we very likely could have a much shorter supply, which already occurred this year," Ross said.
For the state's dairy producers, who require labor year-round, there is great concern about what the no-match rule could mean.
"We are encouraging our members to call the White House and the administration to let them know what their concerns are with regard to the no-match rule regulation," said Michael Marsh, Western United Dairymen chief executive officer. "Employees have gotten the word that there's stepped up enforcement. They are nervous and anxious about what their futures are going to be in the United States."
White House officials were asked if there is a provision in the no-match rule that protects employers from being sued for discrimination if it so happens that they are required to dismiss an employee. The DHS official said, "If you have followed our guidance, you shouldn't be sued unless you have done this in a discriminatory fashion, which means you did it for some people, but not for others. As long as you treat everyone the same way, it would be very difficult for someone to bring a successful lawsuit."
The Bush administration's plan to streamline the H-2A program was also part of the conversation between the federal officials and Farm Bureau.
In remarks to officials, Mosebar described drawbacks to the current H-2A program.
"There is a reason that only 2 percent of the ag employees come to work under the H-2A program. Besides being a paperwork nightmare, perishability of the crops is an issue, especially here in California. And even if we fix that right now, we have a need for 450,000 ag workers here in California so there's no way they are going to get through the whole process to address the needs that we have here in California over the next 60, 90, 120 days," Mosebar said.
To help farm employers understand and comply with the DHS no-match rule, Farm Employers Labor Service Executive Vice President George Daniels said his organization is working to provide accurate information and resources.
"We intend to put on some seminars to bring people up to date. We are also investigating the H-2A program to provide a service for employers needing that kind of assistance," Daniels said.
For more information about how to comply with the new DHS no-match regulation and to subscribe to FELS, go to www.fels.org or call FELS at (800) 753-9073.
(Christine Souza is a reporter for Ag Alert. She may be contacted at firstname.lastname@example.org.)
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