Comprehensive Immigration Reform in the Current Congress: Any Takers?

Published on: 11:20AM Feb 18, 2011

What does the new Congress mean for agriculture and dairy? There’s good and bad news.

Miltner photo   CopyBy Ryan Miltner, attorney
We are now six weeks into the new Congress. A perusal of the news coming from Washington turns up nary a mention of how to address the needs of agricultural employers or how to handle the 12 million or so undocumented workers currently in the country. 
The combination of the daunting fiscal issues facing the nation and the political changes from the last Congress combines to paint a dim picture for those hoping to see meaningful progress on immigration. As expected, budget considerations are dominating all debate on Capitol Hill. Remember that in the last Congress, Democrats held a 59-41 majority in the Senate and an overwhelming majority in the House of Representatives. Today, Republicans hold a dominant majority in the House, and the Democratic majority in the Senate is a slim six votes. 
It is fair to say that in the last Congress, the climate for a comprehensive immigration reform package was far better than today. AgJOBS, the legislation that specifically addressed the needs of the agriculture community, simply could not generate the support needed to bring the package to a vote in either chamber last term. 
So, where does that leave agriculture for the next two years? The good news is that, in general, agricultural employers are winning the policy debate as to whether the employment needs of producers and processors can be adequately met by the domestic labor force.  The bad news is, as the AgJOBS experience from last year demonstrates, agriculture cannot carry the weight of an immigration bill alone. 
Last month, former Senator Judd Gregg of New Hampshire addressed the attendees of the International Dairy Foods Association Dairy Forum. Senator Gregg, a Republican, had a reputation as a relative moderate and leader on budgetary issues. Before leaving the Senate, he served on the bipartisan task force on the federal budget deficit. So, his comments came coupled with the background of someone well versed on the budget struggles that the Congress will be pre-occupied with during the next year.
Senator Gregg made clear that the principle obstacle to immigration reform is not over workers for agriculture but over amnesty for those in the country illegally and protecting the American workforce. Before any discussion about meeting the hiring needs of the farm sector can be had, legislation must include one or more of the following policies: 
  • First, the southern border must be secured.  That point is not open to political debate. 
  • Second, federal policy must ensure that employers are hiring legal workers. As other “Labor Matters” columnists have explained in prior articles, employer compliance with I-9 requirements does not ensure that employers are hiring legal workers. More troubling is that the federal government’s E-Verify system is not sufficient, either. A government study suggested that E-Verify fails to catch one out of two illegal workers. Earlier studies concluded that E-Verify also erroneously reports back that many legal workers are undocumented. These errors underscore that E-Verify is not ready for mandatory use.
  • Third, reforms should promote immigration that allows the best and brightest workers to come to America and fill our scientific and technical needs. Current policies bring foreign students here to learn, and then return too many of those graduates to their home countries with their world-class American educations. 
  • Finally, and this may be the trickiest part, any pathway afforded to workers currently in country must be a pathway to legal status--not a pathway to citizenship. That pathway, if it can be crafted, must include, in Senator Gregg’s opinion, both civil monetary penalties along with other remedial action. The version of AgJOBS introduced in the last Congress included such provisions. Whether that framework can be applied in a comprehensive bill is open to debate.
Last week, ICE began audits of about 1,000 businesses’ employment records. The fallout is predictable. Hundreds, perhaps thousands, of illegal workers will be fired. Many of those will have deportation proceedings commenced. Some businesses that did not comply with I-9 or E-Verify requirements will face enforcement proceedings. Other businesses that did comply may still lose workers that were presumed to be employable. But these actions will have no significant effect on the number of illegal aliens working in the country. Perhaps the upheaval for the affected businesses will inspire some action toward a comprehensive reform effort. 
But I have yet to find anyone holding their breath.

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
[email protected].