Sep 02, 2011
Dairy producers should be concerned about Congressman Lamar Smith’s proposed legislation to mandate the employee authorization system.
By Erich C. Straub, attorney
The Labor Day holiday is a time for rest and reflection, so after some rest, let us reflect on the current state of rural labor and immigration reform. “Ugh,” you say. “Let me enjoy my barbecue and drink in peace as the last days of summer pass.” While I would be happy to oblige, many of your congressional representatives have no intention of doing so, and they are planning to rekindle the immigration debate when they return from the holiday.
If the debate were over AgJOBS or some other common-sense solution for agriculture, then you would have reason for optimism. But the political battle for victory in 2012 has begun in earnest, so the silly season is upon us. Right on cue, Congressman Lamar Smith plans to push the Legal Workforce Act, the central component of which is mandatory E-Verify for all employers in the U.S.
E-Verify is the federal electronic system to verify employment authorization. It is presently voluntary under federal law. There are also nine states that have mandatory E-Verify, with Arizona being the most notable. The U.S. Supreme Court in Chamber of Commerce v. Whiting recently ruled this Arizona law constitutional. Mr. Smith’s bill was introduced shortly after the Court’s decision. The bill explicitly incorporates Whiting by continuing to allow states to use their business licensing powers to mandate E-Verify.
Why has it taken so long for Mr. Smith’s bill to be introduced? My sources on Capitol Hill tell me that the initial introduction of the bill resulted in an extremely negative reaction from the agriculture industry. In an attempt to mollify this criticism, Mr. Smith has now added a three-year period before E-Verify would apply to agriculture. Negotiations are also underway among congressional Republicans to streamline the H-2A visa to allow for a more robust temporary worker program. Mr. Smith claims that this will allow farmers to gradually replace their undocumented work force with a legal one over the three-year period. Of course, as with any legislation, the devil is in the details, and the public has not yet seen the modified version of the bill.
Will the revised version be good or bad for dairy? There are reasons for concern given the concepts being discussed. Mr. Smith and his allies clearly believe that the workers that agriculture needs will simply appear once the demand for undocumented labor is eliminated. They argue that wages for farm workers will rise and native-born workers will flock to the jobs. This is an oversimplification of the causes of the rural labor crisis, and dairy producers should be wary of a solution that is based on such a flawed premise.
The H-2A modification to the bill also has several potential flaws. First, there is a very serious concern among farm worker advocates that the bill will completely gut worker protection measures in the name of efficiency. While agriculture is desperate for a solution, it should not forget the lessons of the failed Bracero guest worker program.
Second, when the three-year phase-in is coupled with an H-2A visa, one stark reality remains: Dairy producers will eventually lose the well-trained workforce that they presently employ. Because the vast majority of those workers have been in the U.S. unlawfully for more than a year, they will not be eligible for re-entry under the H-2A visa for a minimum of 10 years, and in many cases, permanently.
Finally, the H-2A visa is only for seasonal workers. For this reason, dairy producers have never been eligible to use it because cows have to be milked 365 days a year. It remains to be seen whether the bill will allow dairy to use the H-2A visa to employ foreign workers year-round. At least one of my sources with knowledge of the negotiations was extremely skeptical that the bill would result in an H-2A visa that would be useful to dairy.
It is clear that the agricultural industry has already had an impact on the shape of this bill, but dairy producers need to remain extremely vigilant. When a draft is finally released, these and other tough questions need to be asked. Whether the bill is good for dairy will depend on the answers.
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 DC to meet with elected officials regarding immigration reform, and in 2008, the Milwaukee Business Journal described him as a “national leader on the federal immigration issue.”