WASHINGTON, Feb. 25, 2015 – A Texas judge’s order that has indefinitely delayed some of President Obama’s executive actions on immigration could benefit farms and processors that rely on immigrant labor.
The order prevents the Department of Homeland Security from processing applications for work permits from illegal immigrants who have been in the country for at least five years and have children who are citizens or lawful residents. That initiative, called Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), is expected to benefit millions of immigrants, including farmworkers.
But it also is raising a number of legal questions for employers, and there are fears in agriculture that employees will leave for better-paying jobs once they have work permits.
The Feb. 16 order by U.S. District Judge Andrew Hanen, however, did not affect another key part of the president’s strategy, the shift in immigration enforcement away from farms and businesses to the border.
There was already evidence of an enforcement shift in the months leading up to the announcement of the executive actions in November, said Frank Gasperini, executive vice president and CEO of the National Council of Agricultural Employers. “The heat has been turned down” from recent years when dairy farms and other businesses suspected of employing illegal immigrants seemed to be regularly targeted, he said.
“It was an administrative priority to take the heat off and not continue to hector agriculture out of business,” he said. Employers “don’t have a free pass, but they don’t feel quite as inordinately victimized,” he said.
The shift in enforcement -- known as the Southern Border and Approaches Campaign Plan --entailed setting up task forces to reassign personnel. Immigration and Customs Enforcement hasn’t released enforcement statistics for fiscal 2015, which started Oct. 1, but the fiscal 2014 data already showed that the agency was shifting its enforcement priorities. ICE conducted 102,224 removals of individuals from the U.S. interior, versus 213,719 at the border, and 85 percent of the interior removals were of people previously convicted of a crime in 2014.
In fiscal 2013, ICE reported 133,551 interior removals versus 235,093 at the border. The emphasis on border security also means that workers who return to their home countries also may have a harder time getting back into the United States.
The DAPA program is likely to pose a legal challenge for employers, if and when it’s allowed to proceed, according to immigration experts. That’s because workers who apply for the program will likely need payroll records to prove they’ve been in the country continuously since January 2010.
The problem for employers comes when immigrants ask their bosses for the records and tell them why they need them, according to a briefing paper prepared for the Agriculture Coalition for Immigration Reform, a collection of agribusiness groups. At that point, the employer presumably becomes aware that the worker isn’t in the country legally. So, the advice to employers when workers request records: Don’t ask why.
There’s also the question of what employers should do about the existing I-9 forms they have on file for their workers who file the deferred action. Presumably, those I-9 forms are fraudulent if the employees are filing DAPA applications. The briefing paper advises employers to keep the old I-9 forms on hand and complete a new one.
Meanwhile, farms and other agribusiness employers fear that the DAPA program will force them to find new workers, further straining the H-2A agricultural visa program, which many employers already don’t like because of its restrictions. For one thing, H-2A visas are limited to temporary, seasonal employees.
DAPA “could lead to the attrition or greater attrition of workers out of” agriculture, said Lynn Jacquez, an immigration lawyer speaking at the National Council of Farmer Cooperatives’ recent annual meeting.
Agribusiness interests have been urging the Agriculture Department to ensure that employers have clear guidance on how to handle DAPA applications and are protected from liability when they provide the requested payroll records, said Craig Regelbrugge, national co-chair of the agribusiness coalition. He said the executive actions “will not resolve the ag labor situation. Legislation that creates a lasting solution and an orderly transition is the answer,” he said.
The DAPA program and a separate plan to expand a deferred action program for immigrant children are at the heart of a stalemate in Congress over funding the Homeland Security Department, which has been operating under a stopgap spending bill that expires Friday. If the department’s funding lapses, much of the DHS workforce would continue on the job, but employees would have to work without pay.
A bill that would fund the department for the rest of the fiscal year has been blocked in the Senate because of Democratic objections to House-passed provisions that would block the president’s executive actions, including the original deferred-action program for children from 2012. The latest Republican plan is to offer a vote on a separate measure expressing disapproval of the actions the president announced in November, including the DAPA program.
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