Dairy-related details of the proposed legislation, from legalizing undocumented workers to the guest-worker program to E-Verify.
By Erich C. Straub, attorney
On May 21, 2013, the Senate Judiciary Committee voted 13-5 to approve a sweeping immigration reform bill authored by the bi-partisan "Gang of Eight." The vote came after hundreds of amendments were considered. Many of the amendments were offered by opponents of the bill in an unsuccessful attempt to derail it. The bill came out of committee with significant momentum, and debate on the Senate floor will begin on June 10.
In this first installment of a two-part column, I will examine the basics of the bill as it relates to the dairy industry. In the second installment, I will analyze the political prospects of the bill as it moves from the Senate over to the House.
The bill addresses the two major concerns of dairy regarding immigration. First, most dairy operations currently have a well-trained immigrant workforce, a high percentage of which is likely undocumented. The bill would allow this workforce to legalize quickly and get on a path to permanent residence over a more extended period of time.
Second, dairy has been unable to access the H-2A visa for temporary workers because it is "seasonal" and only allows agricultural workers to enter the U.S. for a very limited period of time. The bill creates a new "guest worker" program that will replace H-2A and will not have the seasonal restriction that has resulted in a substantial undocumented workforce on many farms.
Legalization – "Blue Card"
The agriculture component of the bill was largely authored by Senator Diane Feinstein (D-Calif.) and mirrors her previous AgJOBS legislation. Undocumented workers would be able obtain lawful or "blue card" status for a period of up to eight years if they can demonstrate the following:
• Performed agricultural work for 575 hours or 100 days during a two-year period ending on Dec. 31,2012;
• Do not have a significant criminal record, which includes:
o One felony (including an "aggravated felony" under immigration law)
o Three misdemeanors on different dates (there is a waiver for humanitarian purposes)
o Certain foreign convictions
o Any instance of unlawful voting in the U.S.;
• Paid a $100 fine;
• Applied within one year of enactment of the legislation.
Permanent Residence - "Green Card"
Blue cardholders would be eligible to file permanent residence or a "green card" for themselves, their spouse and minor children within five years if they can demonstrate the following:
• Performed agricultural work for 100 days for each of five out of eight years, or 150 days for each of three out of five years;
• Satisfied all outstanding tax liability
• Paid a $400 fine
• Applied while in blue card status
Temporary or "Guest" Worker Program
On Oct. 1, 2014, the H-2A visa would be eliminated and replaced with the W-visa. Agriculture, including dairy, would have two dedicated visas under this program. The first would be the W-2 visa, which would apply to agriculture workers who have a written contract for work with a specific employer. The second would be the W-3 visa, which would allow agricultural workers who have an offer of full-time employment to be admitted to the U.S. as "at will" employees.
Both visas are for a period of three years and would not be seasonal. The visas would be "portable," which would allow the workers to change to another employer under certain conditions. The visas would have housing and travel reimbursement requirements for the employer that are be similar to the H-2A program. Base wages and wage increases are also mandated. There will be only 112,333 visas available for the first five years of the program, but there are provisions to adjust this number, based on economic conditions and the demand for labor.
All employers in the U.S., including dairy, would be required to use E-Verify, the federal electronic system for verifying work authorization. The program would be implemented over a five-year period, giving employers sufficient time to adjust. While E-Verify has been a major concern for dairy, it has almost always been proposed without the type of legalization and guest worker program contained in this bill. With these new visa programs and a flexible implementation period of five years, dairy should have very little to fear from mandatory E-Verify.
When the Gang of Eight announced the details of bill in April, Senator John McCain made the following statement: "We cannot allow the perfect to be the enemy of the good." While this may not be a perfect bill for dairy, it is very, very good. If passed in its present form or in a reasonably close facsimile, it will go a long way to solve the long-term rural labor crisis on most dairy farms.
Erich C. Straub is an immigration lawyer who practices in Wisconsin and is listed in The Best Lawyers in America, SuperLawyers, and U.S. News and World Report’s Best Law Firms. Mr. Straub has spoken to audiences throughout the U.S. on immigration, and frequently advises Wisconsin Dairy Farmers on the topic. He has traveled Washington, D.C., to meet with elected officials regarding immigration reform. In 2008, the Milwaukee Business Journal described him as a "national leader on the federal immigration issue." Contact him at (414) 224-8472, or firstname.lastname@example.org.