Now that President Obama has laid out his plan to use executive actions to alter the way current immigration laws are enforced, Ag employers are considering the impacts on their workforce. Most details are not yet available, but it appears that many of the changes that could impact the industry may take months.
One thing is certain: the president is not enacting any special policies or regulations to help agriculture as he is doing for businesses that hire high-skilled workers. Rather, some of the programs such as the expansion of Deferred Action for Childhood Arrivals (DACA) and the new Deferred Action for Parents (DAP) may indirectly benefit existing agricultural employees.
Deferred Action is a form of prosecutorial discretion by which the government deprioritizes and allows an undocumented immigrant to avoid deportation, but it does not confer any visa, green card or citizenship status. In 2012 the DACA program was implemented for those who came to the United States before their 16th birthday; were under the age of 31 as of June 15, 2012; and met other requirements related to physical presence, lawful status, and enrollment in school or military. The government is now expanding DACA by removing the age cap and adjusting the date of entry requirement, so that all otherwise eligible immigrants who entered the United States by January 1, 2010, and before attaining the age of 16, will be eligible. In addition, the DACA renewal and work authorization (EAD) period is being extended from the current two-year increments to three-year increments, beginning on November 24, 2014.
The new DAP program will cover qualified adults who are the parents of U.S. citizens or lawful permanent residents, and who are otherwise not enforcement priorities (e.g., suspected terrorists, convicted felons, convicted gang members, and people apprehended at the border, among other categories.) It is anticipated that four to five million will now be eligible for Deferred Action if they:
- Have a son or daughter who, as of November 20, 2014, is a U.S. citizen or has a green card (lawful permanent resident status);
- have continuously resided in the United States before January 1, 2010;
- were physically present in the United States on November 20, 2014, and at the time of making a request for consideration of Deferred Action with USCIS;
- have no lawful status on November 20, 2014;
- are not an enforcement priority; and
- present no other factor that, in the exercise of discretion, makes the grant of Deferred Action inappropriate.
The filing period for newly eligible DACA and DAP applicants is projected to open in 90 days and 180 days respectively. However, U.S. Citizenship and Immigration Services (USCIS) announced that it will not be able to act on all DACA and DAP applications (including requests for employment authorization) until the end of 2016. A major concern is what happens when an employer becomes aware that its worker has applied for DACA/DAP benefits, and thus, by definition, is not authorized to work? Ordinarily, once an employer has knowledge that an employee is not work authorized, they are required to terminate employment. Unfortunately, DHS has given no indication that an employer will be given a reprieve from immigration enforcement while an employee’s Deferred Action application is pending. Industry groups are seeking guidance that will help keep employers out of harm’s way while DACA/DAP applications are pending.
At this point, it is unclear how many agricultural employees are eligible for the new Deferred Action programs and of those, how many will actually apply.
Finally, another component of the president’s executive action is that Immigration and Customs Enforcement (ICE) will increase worksite enforcement activities in coordination with the enforcement activities of the U.S. Department of Labor (DOL) and other federal and state agencies. This signals stepped up I-9, FLSA, and OSHA audits impacting many sectors, including agriculture.
Western Growers will be issuing further guidance as details become available. As with any change in immigration enforcement policy, WG encourages members to take this opportunity to review their immigration and employment law compliance practices with legal counsel. Please consult WG Vice President and General Counsel Jason Resnick if you have questions.
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