Published on: 15:36PM Oct 10, 2011
Representative Lamar Smith’s “Legal Workforce Act” proposes re-tooling the current H2A visa program and limiting the number of visas to 500,000 per year. But the current demands of agriculture are for at least 1.2 million workers annually.
By Ryan Miltner, attorney
In my last entry for Labor Matters, I wrote about the different legislative actions that states are taking to deal with immigration and how have so many different state requirements might actually spur Congress to action on some kind of immigration reform bill.
Since then, the House Judiciary Committee has held hearings to “mark up” one such piece of legislation, Representative Lamar Smith’s “Legal Workforce Act” (H.R. 2885).
In a mark-up, the members of a committee discuss a bill, offer and vote on amendments, and ultimately determine whether the bill would be approved by the entire committee. Following the mark-up of the Legal Workforce Act, the Judiciary Committee sent the bill to the full House. The next step would be for the House of Representatives to take actions.
From a business standpoint, the marked-up bill contains several provisions that employers generally favor, or at least favor in the political context of a mandatory E-Verify world. First, the bill contains strong pre-emption laws that would prohibit individual states from enacting their own laws on immigration and hiring. This would prevent measures such as the Arizona Legal Workers Act. This kind of preemption would be required to prevent the kind of patchwork regulation that is beginning to develop.
With respect to E-Verify, the bill mandates its use, and phases in compliance. For agricultural laborers, compliance with E-Verify would be required 36 months after enactment.
Also important is a strong “safe harbor” provision to protect employers. Under the safe harbor, employers who act in good faith to comply with the requirements of the Act would be immune from civil and criminal liability for any employment related action. Providing employers with assurance that compliance with E-Verify requirements would insulate them from liability from federal and state governmental entities as well as employees, is critical to achieving a working bill.
Now, turning to agriculture visas, there are continuing debates over what changes, if any, are to be made to specific visas for agricultural laws. Representative Smith, the principal sponsor of the Legal Workforce Act, proposes re-tooling the current H2A visa program and limiting the number of visas to 500,000 per year. But the current demands of agriculture are for at least 1.2 million workers annually.
More problematic, however, is that the H2A program is not workable for the vast majority of agricultural employers, including dairies, because the visas are limited in time. Year-round ag operations need visas that provide for long-term certainty of labor.
The feeling among agricultural employers, and this is a feeling with which I personally concur, is that an enforcement-only bill that does not include provisions that provide for a stable workforce for all of agriculture (including dairy) cannot be supported.
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].