Immigration Policy Issues For Agriculture

One Commerce Plaza Albany, New York 12260 P 518.487.7600 F 581.487.7777 www.woh.com Immigration Policy Issues For Agriculture NYFB Commodity Committee Summit August 16, 2011 L. J. D Arrigo

Overview Need for reliable supply of seasonal workers not being met U.S. government conflicted about availability of US workers Patchwork of prior programs has not led to viable solutions H-2A Program serves 7,700 agricultural employers Fills 75,000 jobs out of 1.2 million farming positions. More than ½ of the 1.2 million positions filled by illegal workers What does a seasonal/temporary business do to get the workers it needs?

THE PROBLEM OF ILLEGALITY Basic rule: No visa problem can be fixed inside the U.S. If an alien has violated their visa status (overstay, illegal employment), the problem can only be fixed by the alien departing the U.S. and re-entering Re-entry may be enough; other cases require new visa stamp at home Cannot amend / change / extend / file visa applications if not currently in valid status Three- and ten-year bars: You can t go home again IIRAIRA 1996: if leave the U.S. after being unlawfully present in the U.S. for: 6 months - cannot return to the U.S. for THREE YEARS 12 months or more cannot return to the U.S. for TEN YEARS Can t fix visa status in the U.S., but can t leave to obtain new temporary or permanent visa status at US consulate permanent illegality Illegal Immigration Problem would be greatly reduced by eliminating the bars Conclusion: You can t fix the status of a worker who is illegal

H-2A VISAS - AGRICULTURAL WORKERS: The Fast Track? Requirements Applications Steps Timetable Duration Job must be agricultural Labor or services Job must be temporary or seasonal Employer must recruit Place Job Order with SWA and begin recruitment; file with USDOL Chicago File visa petition with USCIS Pre-filing recruitment 75 days prior to need; File 45 days in advance of need Deficiency notice sent within 7 days Granted for up to 364 days/ year, but usually less Renewable for total of 3 years; re-recruit each season pursuant to DOL and continue to hire available Americans up to 50% of contract period Worker housing must meet DOL/DOH standards, inspection Must pay Prevailing Wage determined by USDOL Issuance of visa to alien - If in US, change status with visa petition - If overseas, apply at US consulate overseas for entry visa Usually work with incountry agent to facilitate visa issuance Cost DOL: $100 per appl. + $10 per job USCIS filing fee: $325 Recruitment costs Consular processing fees $100 $300

H-2A LABOR CERTIFICATION PROCESS File Interstate Job Order with SWA Begin positive recruitment 75 days prior to need: (1) 2 ads in local paper (including 1 Sunday); (2) Up to 3 ads in other states of labor supply; contact former workers File Forms ETA 9141, ETA 790, recruitment report with DOL Chicago 45 days prior to need DOL will send deficiency notice within 7 days Updated recruitment report submitted prior to approval DOL must make determination 30 days prior to need DOL will refer applicants up to 50% of contract period employer must hire U.S. workers up to number of certified positions

H-2A VISA PETITION PROCESS (USCIS) Petition Contents: Form I-129 I-129H Supplement Employer Support letter Original Labor Certificate $325 filing fee File with USCIS California Service Center Cannot include both named and unnamed workers on same petition No premium processing USCIS will process within 1-2 weeks

EMPLOYER OBLIGATIONS TO H-2A WORKERS Required benefits to H-2A workers Provide free housing Pay inbound transportation and subsistence/out-bound transportation Guarantee ¾ of contract period Provide 3 meals/day or kitchen facilities Provide Workers Compensation insurance Provide copy of work contract/eta 790 to H-2A worker Must pay Adverse Effect Wage Tax and withholding requirements FLSA wage requirements not applicable - no overtime pay required Employer does not withhold SS or Medicare for H-2A workers, unless Employer should report wages paid to H-2A worker on Form 1099-Misc, but should instruct workers about potential income tax liability

H-2A VISA CHALLENGES & STRATEGIES H-2A Challenges Costly Does not directly include certain dairy farm workers Milkers No year-round coverage Must hire any U.S. Workers referred by DOL up to 50% of contract period, laying off H- 2A workers in the process Must offer same benefits to all U.S. workers in H-2A positions H-2A Strategies Include multiple farm-owned properties in one application Joint sponsorship by multiple farms or agricultural association Separate applications for Crop Workers (March 1 to November 30) and Winter Grounds/Maintenance Workers (November 30 to March 1) Joint sponsorship by multiple farms or agricultural association Can file for Dairies under Crop Worker position

H-2A Enforcement: The New ICE Age ICE s new directive is to prioritize the use of its enforcement personnel, detention space and removal resources according to ICE s Civil Enforcement Priorities (Director John Morton s memo to the field, dated 3/2/2011). Priority 1: Aliens who pose a danger to national security or public safety Priority 2: Recent Illegal Entrants Priority 3: Fugitive Aliens or Aliens Obstructing Immigration Controls Total Removals: 2011: 54,343 2010: 392,862 2009: 369,221

Consequences of Hiring Unauthorized Aliens Over the last seven years, ICE has developed a comprehensive worksite enforcement strategy that includes a commitment to criminal prosecutions and the removal of unauthorized aliens from the American workforce ICE is charged with regulatory enforcement of the Form I-9 employment eligibility verification process. ICE has reinvigorated its compliance efforts by increasing I-9 inspections and revamping the administrative fine process Criminal Prosecution: Felony and Misdemeanor Imprisonment, Fines, and Forfeitures Administrative Sanctions Hiring Violations: $375 - $16,000 Paperwork Violations: $110 - $1,100 (failure to produce I-9) Debarment Prohibits Federal Contracts for 1-3 years

Worksite Enforcement Since January 2009, ICE has imposed over $50 million in sanctions Criminal Charges: 2010 = 180 2009 = 114 2008 = 135 I-9 Audits: 2010 = 2,200 2009 = 1,400

Basic I-9 Compliance: Best Practices The formal ICE raid usually stems from an initial I-9 audit/investigation make sure your files are in order! Require every new employee to complete Section I of Form I-9 on the first day of employment Employee must provide documents showing employment authorization by the end of the 3 rd day of work, or must be terminated Employee can present any acceptable document(s) listed: do not request specific documents If employer generally makes copies of supporting documents, make copies of both sides of documents If employee is not a USC, note that person s visa expiration date and calendar to follow-up 90 days prior Keep all I-9 forms separate from other personnel/payroll records (two-hole punch and keep in binder) Train hiring managers on I-9 procedures regularly and document such training shows good faith

Form I-9: Maintaining Records Maintain I-9 copies for regulatory mandated period At least 3 years from date of employment or for 1 year after the employee leaves (whichever later) Employer should promptly delete I-9s when possible Maintain I-9 forms separately from individual personnel records Keeping records together could compromise the privacy of employees: allows government inspectors to review items unrelated to Form I-9 Employer would have to manually search personnel records and pull I-9 forms costing valuable time in preparation for government audit Easier to conduct internal audits to ensure compliance with IRCA Easier to organize for reverification as needed Create tickler system for timely I-9 reverification and record purging

Develop Plan for I-9 Audit Response Neither consent or a search warrant is required for an I-9 inspection ICE must provide 3 days notice Any written inquiries should be reviewed as soon as possible government may demand surrender of I-9 forms within 3 days In the event of a surprise visit by ICE, ask agent to wait until the company representative is available If agent has no search warrant or subpoena, the employer should contact an attorney immediately ICE agents may make unannounced visits without a search warrant and attempt to obtain consent to enter premises or to secure I-9 forms without the requisite notice do not consent

The I-9 Audit/Inspection 3-day notice period required If you consent, ICE may question workers that they encounter ICE may seek to use your office to review I-9 forms you may grant or deny access Although no warrant is required for I-9 inspection, you may insist on a warrant for other documents You or your attorney may contact ICE to inquire about the basis for selection of the audit Suspend workers for whom proper verification cannot be completed prior to inspection

Overview of E-VERIFY What is E-Verify? An Internet-based system that compares information from an employee s Form I-9 to data from USCIS and SSA records to confirm employment eligibility Voluntary on the Federal Level (except for Federal Contractors), but 18 States require use of E-Verify Supreme Court has upheld Arizona s E-Verify law stating that Congress did not express any intent to prevent States from mandating participation (Chamber of Commerce of USA v. Whiting). E-Verify set to expire 9/30/2012

Criticisms of Mandatory E-Verify Program E-Verify is a compliance mechanism that has become confused with a deportation strategy Not a solution to our immigration problem without comprehensive immigration reform Takes tax-paying workers and shifts them off the tax rolls, resulting in loss of $17 Billion over 10 yrs Does not force illegal workers to leave the country Does not detect all illegal workers who have stolen/borrowed documents Mandatory E-Verify would cost $2.7 Billion/year (Bloomberg News Service) High error rate/false non-confirmations

Additional information on immigration issues, as well as updates on new developments, can be found on our web site at www.woh.com Go to Practice Groups and select Corporate and Professional Immigration. L.J. D Arrigo Whiteman Osterman & Hanna LLP Albany, NY 12260 (518) 487-7642 Email: ldarrigo@woh.com 2011 Whiteman Osterman & Hanna LLP