Farmworker Justice Immigration Update 10/26/2015

Congress

The Senate held a failed vote last Tuesday to move forward on Senator Vitter's (R-LA) “The Stop Sanctuary Cities Act.” The legislation proposed to strip federal funding for local law enforcement agencies with community trust policies that promote good relations between law enforcement and immigrant communities. Such policies vary but they often limit police officers from asking people about their immigration status and the circumstances in which a law enforcement agency will turn immigrants over to federal immigration authorities. These policies make local areas safer. Community members are far less likely to come forward to report crimes and serve as witnesses if they perceive a risk of removal for themselves or their family members.

The measure failed by a vote of 54-45, with most Republicans voting for the measure and most Democrats voting against it. Sixty votes were needed to proceed to a debate on the bill. Senators Joe Donnelly (D-IN) and Joe Manchin (D-WV) voted with Republicans to move forward on the bill. Senator Kirk (R-IL) was the only Republican who voted against the bill. Senator Lindsey Graham (R-SC), a coauthor of the 2013 comprehensive immigration reform bill passed by the Senate, did not vote on the measure. The House already passed its own version of the anti-sanctuary city legislation this past summer, but it will not move forward unless the Senate is successful in passing similar legislation.

Meanwhile, the House has been consumed with drama around the elections for a new Speaker. Majority Leader Kevin McCarthy (R-CA) withdrew his name from the race the day the internal Republican election was scheduled to take place, stating that he didn't have enough support from the Republican caucus. The action came as a surprise and the election was postponed. After many Republican House members called on Rep. Paul Ryan (R-WI) to run for speaker, he announced last Tuesday that he would run for Speaker only if specific terms are met, including the backing of the three main house Republican caucuses, the Republican Study Committee, the Freedom Caucus and the moderate Tuesday Group. On Friday, Ryan announced that he has enough support to run for Speaker (even though he did not receive the 80% needed for an official endorsement by the Freedom Caucus; he does have the support of 2/3 of its members). Reports indicate that in order to win the support of the conservative Republicans, Ryan pledged not to move forward immigration legislation in the current Congress and without a majority of Republicans supporting the measure. Prior to his interest in the Speaker position, Ryan had worked behind the scenes to try to help move immigration reform forward in the House. Rep. Gutierrez issued a statement indicating his disappointment that Ryan made such a promise in order to secure the votes needed for his leadership bid. Speaker Boehner has set the internal Republican vote for October 28th and the House floor vote for October 29th.

Budget issues dominate the agenda in Congress this fall. The US government is set to reach the debt limit on November 3rd, so Congress must vote to raise the debt limit by then. The Federal Government's short term spending bill will expire on December 11th and Congress will have to pass another spending bill to avert a government shutdown. Some Members of Congress see these must-pass bills as an opportunity to insert policy changes into the legislation. President Obama has stated that he will veto anything less than a clean increase of the debt ceiling. Leadership in both parties are interested in negotiating a deal to raise the spending caps in the government's budget and have stated that they want to avoid a government shutdown. Farmworker Justice will be tracking these bills and working with others to prevent riders that would harm farmworkers and immigrants and low-wage workers more broadly.

Administrative Relief

While we prepare for implementation of President Obama’s administrative relief program, its implementation date is increasingly uncertain. The Deferred Action for Parents of American Citizens and Lawful Permanent Residents (DAPA) program that has the potential to benefit over 700,000 farmworkers and their family members remains on hold due to a court order. The Federal Government has appealed the district court’s decision to enjoin the DAPA and expanded DACA programs in Texas v. US to the 5th Circuit Court of Appeals. However, the three-judge panel of the Appeals Court is likely to uphold the lower court’s decision. While the prospects for the Supreme Court to accept the case and overturn the decision are brighter, the appellate decision must be issued very soon or it will be too late for the Supreme Court to rule during the term that ends in June 2016. As President Obama’s term of office ends in January 2017, the future of DAPA remains uncertain.

Farmworker Justice continues to advocate that the administration make DACA and other administrative changes to immigration policy accessible to farmworkers. This includes collaborating with other organizations to urge the administration to take action to protect immigrant workers asserting their labor rights from deportation and provide them access to work authorization. We are also educating farmworker serving organizations on DACA and how to prepare for DAPA by collecting documents through presentations and webinars.

New H-2A Sheepherder Rule

The Department of Labor released a new regulation in the H-2A program for ranchers seeking to employ guestworkers to herd sheep and other livestock on the open range. While the new regulation is a step up from the outdated and stagnant wages and protections currently in the sheepherder program, Farmworker Justice is disappointed that the Department of Labor gave in to industry pressure and lowered the wages from the original wage formula in the proposed rule.

The regulation will replace outdated guidance which allows employers to pay H-2A sheepherders and goatherders just $750 a month to be on call 24 hours a day, 7 days a week and live in mobile housing on the range. The low wages allowed under the H-2A program have been criticized for many years, as have the living conditions which the Government has permitted. Many H-2A sheepherders and goatherders live in isolation in tents or dilapidated trailers with no heat, air conditioning, running water or toilets and rely on their employers to deliver food periodically. They often have no contact with other people for weeks. Human trafficking is not uncommon in this industry.

Under the new regulation, ranchers will be required to pay a higher minimum wage except in states where state law already requires higher pay for herders (currently California). Generally, the ranchers will be required to pay at least $7.25 per hour for 48 hours per week, or about $1,500 per month. This increase will be phased in over three years. The wage formula in the Final Rule is still inadequate to compensate H-2A range livestock workers and to attract domestic workers to these jobs and essentially just requires employers to pay the federal minimum wage. The substantive requirements related to living conditions are also not substantial enough to ensure that these workers have adequate housing, food and access to emergency and other services. The regulations will go into effect on November 16th, 2015. Farmworker Justice's full statement on the regulation is available here.

H-2A Program Continues Steady Increase

The Department of Labor has released the total numbers of H-2A applications processed in FY 2015, which show that use of the program continues to increase significantly. There were about 140,000 jobs certified in FY 2015, up from around 117,000 positions in FY 2014, about a 20% increase. Florida beat North Carolina as the top user of the H-2A program this year, followed by North Carolina, Georgia and Washington. Although the H-2A program remains a small fraction of the 2.4 million in the farm labor force, it is expected to continue its expansion. Even as the program experiences tremendous growth, growers continue to complain that the program is too bureaucratic and difficult to use (i.e., they don’t like DOL’s oversight and the program’s other protections). The wage and worker protections are essential to protect domestic workers and to ensure that growers seek domestic workers before turning to the H-2Aprogram. Unfortunately, violations of program rules are common and much more enforcement is needed. As we’ve mentioned before, the structure of the program is inherently flawed due to the fact that workers are tied to their employers by their visas making them unlikely to come forward and report labor violations for fear of retaliation.

 

Congress

The Senate held a failed vote last Tuesday to move forward on Senator Vitter's (R-LA) “The Stop Sanctuary Cities Act.” The legislation proposed to strip federal funding for local law enforcement agencies with community trust policies that promote good relations between law enforcement and immigrant communities. Such policies vary but they often limit police officers from asking people about their immigration status and the circumstances in which a law enforcement agency will turn immigrants over to federal immigration authorities. These policies make local areas safer. Community members are far less likely to come forward to report crimes and serve as witnesses if they perceive a risk of removal for themselves or their family members.

The measure failed by a vote of 54-45, with most Republicans voting for the measure and most Democrats voting against it. Sixty votes were needed to proceed to a debate on the bill. Senators Joe Donnelly (D-IN) and Joe Manchin (D-WV) voted with Republicans to move forward on the bill. Senator Kirk (R-IL) was the only Republican who voted against the bill. Senator Lindsey Graham (R-SC), a coauthor of the 2013 comprehensive immigration reform bill passed by the Senate, did not vote on the measure. The House already passed its own version of the anti-sanctuary city legislation this past summer, but it will not move forward unless the Senate is successful in passing similar legislation.

Meanwhile, the House has been consumed with drama around the elections for a new Speaker. Majority Leader Kevin McCarthy (R-CA) withdrew his name from the race the day the internal Republican election was scheduled to take place, stating that he didn't have enough support from the Republican caucus. The action came as a surprise and the election was postponed. After many Republican House members called on Rep. Paul Ryan (R-WI) to run for speaker, he announced last Tuesday that he would run for Speaker only if specific terms are met, including the backing of the three main house Republican caucuses, the Republican Study Committee, the Freedom Caucus and the moderate Tuesday Group. On Friday, Ryan announced that he has enough support to run for Speaker (even though he did not receive the 80% needed for an official endorsement by the Freedom Caucus; he does have the support of 2/3 of its members). Reports indicate that in order to win the support of the conservative Republicans, Ryan pledged not to move forward immigration legislation in the current Congress and without a majority of Republicans supporting the measure. Prior to his interest in the Speaker position, Ryan had worked behind the scenes to try to help move immigration reform forward in the House. Rep. Gutierrez issued a statement indicating his disappointment that Ryan made such a promise in order to secure the votes needed for his leadership bid. Speaker Boehner has set the internal Republican vote for October 28th and the House floor vote for October 29th.

Budget issues dominate the agenda in Congress this fall. The US government is set to reach the debt limit on November 3rd, so Congress must vote to raise the debt limit by then. The Federal Government's short term spending bill will expire on December 11th and Congress will have to pass another spending bill to avert a government shutdown. Some Members of Congress see these must-pass bills as an opportunity to insert policy changes into the legislation. President Obama has stated that he will veto anything less than a clean increase of the debt ceiling. Leadership in both parties are interested in negotiating a deal to raise the spending caps in the government's budget and have stated that they want to avoid a government shutdown. Farmworker Justice will be tracking these bills and working with others to prevent riders that would harm farmworkers and immigrants and low-wage workers more broadly.

Administrative Relief

While we prepare for implementation of President Obama’s administrative relief program, its implementation date is increasingly uncertain. The Deferred Action for Parents of American Citizens and Lawful Permanent Residents (DAPA) program that has the potential to benefit over 700,000 farmworkers and their family members remains on hold due to a court order. The Federal Government has appealed the district court’s decision to enjoin the DAPA and expanded DACA programs in Texas v. US to the 5th Circuit Court of Appeals. However, the three-judge panel of the Appeals Court is likely to uphold the lower court’s decision. While the prospects for the Supreme Court to accept the case and overturn the decision are brighter, the appellate decision must be issued very soon or it will be too late for the Supreme Court to rule during the term that ends in June 2016. As President Obama’s term of office ends in January 2017, the future of DAPA remains uncertain.

Farmworker Justice continues to advocate that the administration make DACA and other administrative changes to immigration policy accessible to farmworkers. This includes collaborating with other organizations to urge the administration to take action to protect immigrant workers asserting their labor rights from deportation and provide them access to work authorization. We are also educating farmworker serving organizations on DACA and how to prepare for DAPA by collecting documents through presentations and webinars.

New H-2A Sheepherder Rule

The Department of Labor released a new regulation in the H-2A program for ranchers seeking to employ guestworkers to herd sheep and other livestock on the open range. While the new regulation is a step up from the outdated and stagnant wages and protections currently in the sheepherder program, Farmworker Justice is disappointed that the Department of Labor gave in to industry pressure and lowered the wages from the original wage formula in the proposed rule.

The regulation will replace outdated guidance which allows employers to pay H-2A sheepherders and goatherders just $750 a month to be on call 24 hours a day, 7 days a week and live in mobile housing on the range. The low wages allowed under the H-2A program have been criticized for many years, as have the living conditions which the Government has permitted. Many H-2A sheepherders and goatherders live in isolation in tents or dilapidated trailers with no heat, air conditioning, running water or toilets and rely on their employers to deliver food periodically. They often have no contact with other people for weeks. Human trafficking is not uncommon in this industry.

Under the new regulation, ranchers will be required to pay a higher minimum wage except in states where state law already requires higher pay for herders (currently California). Generally, the ranchers will be required to pay at least $7.25 per hour for 48 hours per week, or about $1,500 per month. This increase will be phased in over three years. The wage formula in the Final Rule is still inadequate to compensate H-2A range livestock workers and to attract domestic workers to these jobs and essentially just requires employers to pay the federal minimum wage. The substantive requirements related to living conditions are also not substantial enough to ensure that these workers have adequate housing, food and access to emergency and other services. The regulations will go into effect on November 16th, 2015. Farmworker Justice's full statement on the regulation is available here.

H-2A Program Continues Steady Increase

The Department of Labor has released the total numbers of H-2A applications processed in FY 2015, which show that use of the program continues to increase significantly. There were about 140,000 jobs certified in FY 2015, up from around 117,000 positions in FY 2014, about a 20% increase. Florida beat North Carolina as the top user of the H-2A program this year, followed by North Carolina, Georgia and Washington. Although the H-2A program remains a small fraction of the 2.4 million in the farm labor force, it is expected to continue its expansion. Even as the program experiences tremendous growth, growers continue to complain that the program is too bureaucratic and difficult to use (i.e., they don’t like DOL’s oversight and the program’s other protections). The wage and worker protections are essential to protect domestic workers and to ensure that growers seek domestic workers before turning to the H-2Aprogram. Unfortunately, violations of program rules are common and much more enforcement is needed. As we’ve mentioned before, the structure of the program is inherently flawed due to the fact that workers are tied to their employers by their visas making them unlikely to come forward and report labor violations for fear of retaliation.