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What Could Obama Do?

Aug 21, 2014

With Congress stalemated on immigration legislation and little reason to expect a good legislative window before 2017, all eyes are on the President.

Regelbrugge photo 3 13   Copy

By Craig J. Regelbrugge, National Co-chairman, Agriculture Coalition for Immigration Reform

With Congress stalemated on immigration legislation and little reason to expect a good legislative window before 2017, all eyes are on the President. He and his spokespeople have said that he intends to do what he can, "within the law," to improve the situation. Various industries are engaging in various ways, and many legal experts believe he could do quite a few things, each with its own attendant risks and benefits.

Agricultural employers of all types and political stripes have a lot of skin in this game. After all, a majority of the labor force is believed to have papers that wouldn’t stand up to a forensic investigation. But they’re the only ones applying for the work. The existing visa program, H-2A, is an unresponsive and bureaucratic mess. Some industries, like dairy, are virtually excluded from using it anyway, because neither the work nor the workers fit the definitions of temporary or seasonal. Without a doubt, we need legislation to fix the myriad shortcomings of the current system. But perhaps more limited measures could help. What’s possible?

First, without any fanfare, the Administration could shift enforcement priorities to stuff that really matters. At a time when all eyes should be on smugglers and cartels, we’ve seen considerable resources wasted on harassing farmers and their workforce, which was hired after showing papers that appear genuine, the legal standard. Homeland Security officials should only be auditing farms when there’s evidence of criminal wrongdoing, not randomly or on the basis of shadowy, anonymous tips from a disgruntled competitor, worker or neighbor.

Secondly, the Administration could provide some relief from deportation for some of the workforce. The default position is said to be to expand the Deferred Action for Childhood Arrivals (DACA) policy to unauthorized immigrants who have been here for a long time (maybe 10 years or more) or have U.S. citizen children. Such expansions might affect a considerable number of farm workers. The carrot would be legal authorization to work, but there would be no particular incentive to remain in agriculture. How many would take the risk of coming forward and essentially putting themselves on a deportation list? Would they stay on the farm or leave?

Farm worker advocates would like to see such policies extended to all experienced farm workers. After all, we’ve got a labor shortage now, and anything that stabilizes the workforce might help. Some legal analysts believe a better approach than deferred action to address this issue would be the use of "parole authority," an option that essentially allows for the waiving of normal immigration rules for specific individuals when it is deemed to be strongly in the public interest.

The other obvious area for possible action would be to improve the existing visa programs, in agriculture’s case, H-2A. Technically, it’s possible. Most of the cumbersome and unrealistic rules and restrictions of the current program are regulatory in nature, not in statutes passed by Congress. So the Administration could engage in a systematic rulemaking effort to achieve many of the goals of the bipartisan agricultural stakeholder agreement that became part of S.744, the comprehensive immigration bill that passed the U.S. Senate in June, 2013.

But despite strong support from many in Congress, including more than a few Senate Democrats, no one is expecting serious effort in this area. After all, Obama will likely listen to labor unions and worker advocates, and they have little interest in improving the visa program to admit more workers in the future.

Action of some sort is expected as early as September. It remains to be seen what the President will do, and whether it will be done in one step or several. But with House Republicans pretty much immobilized, it might be the only action we see for a while. Let’s hope it does more good than harm!

Based in Washington, D.C., Craig Regelbrugge is co-chairman of the Agriculture Coalition for Immigration Reform, and vice president for government relations with the American Nursery and Landscape Association. Contact him at cregelbrugge@anla.org or at 202-434-8685.

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