Farmworker Justice Immigration Update: The Senate Judiciary Committee Continues to Mark-up S. 744

The Senate Judiciary Committee (SJC) continues to mark-up S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act. The Committee is likely to consider the agricultural sections later today. Yesterday, Monday, the SJC completed its work debating and amending Title III (interior enforcement) and began work on Title II, addressing legalization and future immigration. Title II contains the farmworker immigration compromise, including both the earned legalization blue card program and the new nonimmigrant agricultural worker W3 and W4 visa programs.

Farmworker Justice is very pleased that yesterday’s mark-up included the adoption of Sen. Blumenthal’s amendments 3, 4, and 5 which add needed provisions to ensure the effectiveness of Subtitle F, entitled Prevention of Trafficking in Persons and Abuses Involving Workers Recruited Abroad. Subtitle F aims to curb trafficking and labor abuses during the recruitment of foreign citizens for employment in the U.S. under visa programs such as the H-2A agricultural guestworker program and the new W3 and W4 visas. Abuse in the international recruitment of workers across visa programs is rampant and in its worst form results in forced labor and human trafficking.

Read the full posting for a breakdown of additional amendments.

The Senate Judiciary Committee (SJC) continues to mark-up S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act.  The Committee is likely to consider the agricultural sections later today.

Yesterday, Monday, the SJC completed its work debating and amending Title III (interior enforcement) and began work on Title II, addressing legalization and future immigration.  Title II contains the farmworker immigration compromise, including both the earned legalization blue card program and the new nonimmigrant agricultural worker W3 and W4 visa programs. 

Farmworker Justice is very pleased that yesterday’s mark-up included the adoption of Sen. Blumenthal’s amendments 3, 4, and 5 which add needed provisions to ensure the effectiveness of Subtitle F, entitled Prevention of Trafficking in Persons and Abuses Involving Workers Recruited Abroad.  Subtitle F aims to curb trafficking and labor abuses during the recruitment of foreign citizens for employment in the U.S. under visa programs such as the H-2A agricultural guestworker program and the new W3 and W4 visas.  Abuse in the international recruitment of workers across visa programs is rampant and in its worst form results in forced labor and human trafficking. 

Farmworker Justice has been working with the UFW, FLOC, the International Labor Recruitment Working Group, and ATEST to ensure that these provisions were included in the original bill and to strengthen them.  Subtitle F would regulate international labor recruiters to protect U.S. and international workers and to maintain the integrity of our immigration system.  The Department of Homeland Security would establish a system under which international labor recruiters would need to register.  Employers seeking foreign workers would be required to use only registered recruiters.  Recruiters would be required to disclose information to workers, abide by certain rules, and purchase a bond to ensure that victimized workers would have a fund to pay damages.  Victimized workers could file an administrative complaint or a lawsuit against recruiters for violating the law.  The three amendments passed with strong support by voice vote.

• Blumenthal’s amendment 3 adds into the enforcement provisions a private right of action against employers by aggrieved individuals.  Individuals must first file a complaint with the Department of Homeland Security and if DHS fails to act within 120 days, then the individual may file an action in federal or state court.  Only employers that fail to use a registered labor contractor may be sued.  Sen. Blumenthal, supported by Farmworker Justice and others, had devised and argued for stronger requirements and liability on the part of the employers whose recruiters (even if registered) engage in abuses.  Because that version of the amendment did not have adequate support to pass the Committee, Sen. Blumenthal negotiated the substitute amendment that was unanimously passed by voice vote.  Farmworker Justice supported the substitute amendment because we believe that having a private cause of action against employers, despite its being able to be used only infrequently, creates a modest risk of enforcement and provides the incentive needed for employers to participate in the system for the benefit of workers.
•  Blumenthal’s amendment 4 requires the Department of Homeland Security to consult with the Department of Labor when developing regulations to implement the anti-human trafficking/foreign labor recruiter provisions in Subtitle F.  The consultation would help ensure an effective and efficient system within DHS due to DOL’s long history and infrastructure as the federal agency that issues regulations under and enforces major employment laws, including the farm labor contractor registration system.  Some Senators earlier had opposed granting DOL the primary enforcement responsibility of the new labor recruiter system.
•  Blumenthal’s amendment 5 strengthens the bill’s protections, regardless of the visa category, by increasing transparency in the international recruitment of workers.  Among its provisions, this amendment: (1) ensures uniformity in the disclosure of information critical to workers as they decide to come to the US; (2) ensures that the agreed-upon terms of the contract could not be changed without the workers’ voluntary consent and without 24 hours for workers to review the changes; and (3) improve transparency in the recruitment system by ensuring that employers provide the Secretary with information about the foreign labor contractors being used, including the services being provided, and who is paying for such services.

Other positive amendments adopted yesterday on Title III included an amendment by Sen. Blumenthal that would limit immigration enforcement actions at highly sensitive locations such as hospitals, schools and clinics.  Another amendment by Sen. Franken, amendment 2, is intended to protect children during enforcement, by requiring sensible steps like allowing parents to make calls to arrange for childcare.  After an explanation that included the story of a 2nd grader who stayed home alone caring for his two-year-old sibling for a week with no idea where his parents were, the amendment was adopted unanimously with multiple members asking to be included as cosponsors.

 Also passed yesterday, Sen. Leahy’s Amendment 3 addressing the need for trafficking victims and victims of crimes (T, U, And VAWA visas) to get work authorization upon approval of their visa or 180 days after filing the application, whichever is earlier.  In addition, many harmful amendments were voted down, including Sen. Sessions’ amendment 31, denying the Earned Income Tax Credit to anyone who is a not a US citizen or lawful permanent resident (i.e, all those, including blue card holders in agriculture, who would be in the legalization programs).