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Immigration Enforcement’s Outlook Uncertain

Nov 03, 2012

What might the next four years bring for immigration enforcement, especially for agricultural employers?

Miltner photo   CopyBy Ryan Miltner, attorney

The Presidential election is today. No news there. And there has been speculation about what the next Congress might do with respect to comprehensive immigration reform efforts. However, little has been written about what the next four years might bring for immigration enforcement, especially with respect to agricultural employers. I thought it might be useful to take a short look at that under-examined area.

When immigration became a hot political issue, about six or seven

Ryan Miltner will speak at Dairy Today’s 2012 Elite Producer Business Conference Nov. 6 in Las Vegas. Click here to learn more.

years ago, President George W. Bush’s enforcement strategy was heavily focused on workplace sweeps, or raids. The effect on employers was, predictably, chilling. Armed federal agents would descend on an employer, rounding up suspected illegal workers. The remaining workforce, some of whom were likely undocumented in their own right, invariably vanished. The business, to the extent it could function, was severely paralyzed. In the case of dairy farms, cows were left without milkers. Farm owners scrambled, enlisted the help of their friends and neighbors. But the damage was done. In many cases, the farm had thought it had complied with I-9 requirements.

With President Obama's election, ICE shifted its strategy to one of audits. Rather than make a show of force with agents and arrests, employers were now served with subpoenas to audit their I-9 records. These subpoenas and audits had the advantage to the employer of being far less conspicuous. Further, if the employer had been in compliance with his or her I-9 requirements, the process of identifying and removing undocumented workers was somewhat less disruptive to the overall business operation.

So, the question for today is, what will the outcome of the federal election have on these policies? In all likelihood, the reelection of President Obama would have little effect. The current policy of audits would continue. The election of Governor Romney, however, is less clear.

On one hand, Republicans have tended toward much stronger enforcement measures. The mantra of secure, deport, then reform, was unbending during the Bush administration. But on the other hand, Governor Romney has strong ties to business, and the U.S. Chamber of Commerce has been very critical of haphazard enforcement efforts that harm businesses attempting to comply with immigration laws. Also, the overall political environment regarding immigration has softened somewhat over the past several years. A strong argument could be made that under a Romney administration, the current policies of audits, combined with the use of Social Security no-match letters, would continue.

For dairy producers looking at enforcement policy apart from immigration reforms, that would certainly be good news.

Ryan Miltner is an agricultural and estate planning lawyer in private practice. His agricultural practice is focused on dairy policy and the economic regulation of the dairy industry. The opinions in this article are his own observations prepared for Dairy Today and do not necessarily reflect the opinions of any of his clients. Contact him at

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