On November 20, 2014, President Obama announced several executive actions on immigration.  Under the plan, an estimated four to five million undocumented immigrants will likely qualify for temporary relief from the threat of removal, and be eligible to receive employment authorization.  The president’s decision to bypass Congress has infuriated many Republicans with some vowing to block these measures.

While none of the policy reforms specifically reference the agricultural industry, the Immigration Accountability Executive Actions include several provisions that could directly impact some WG members and their employees.  Specifically, the provisions covering deferred deportation for certain immigrants who entered or remain in the United States without authorization is a shift in immigration enforcement priorities by the Department of Homeland Security.  Following is an explanation of some of the impacts these executive actions may have on agricultural employers.

What Executive Actions might apply to agricultural employees?

The president's immigration actions include several provisions to provide relief to undocumented immigrants.  Two of these provisions may apply to certain falsely-documented agricultural employees.

First is the expansion of eligibility for Deferred Action for Childhood Arrivals (DACA), which will extend the existing program to anyone who entered the United States by January 1, 2010, and was under the age of 16 at the time of entry, and not just those born after June 15, 1981.  DACA relief and work authorization permits will be lengthened from the current two years to three years.

Second is the creation of a new prosecutorial discretion program, Deferred Action for Parental Accountability (DAPA). DAPA covers the parents of U.S. citizens or lawful permanent residents that were born on or before November 20, 2014.  As with the DACA program, qualified applicants will be eligible for employment authorization.  Both the deferred action and the employment authorization will be valid for three years.  The U.S. Citizenship and Immigration Services said it will begin accepting applications approximately 180 days after the president’s announcement.

Who among our current workforce could be eligible for relief?

The fact is, nobody knows for certain.  It has been widely reported that the United Farm Workers union estimates at least 250,000 farm workers nationwide — including 125,000 from California — will be eligible under the new programs to receive deferred deportation action and temporary work authorization, but some in agriculture have questioned the basis for that number, believing it to be grossly inflated.  How many workers may be eligible for any particular employer will vary greatly.

How many eligible farm workers will actually take advantage of the program?

Again, the jury is still out.  Some analysts believe that interest in applying will be tempered by the fact that Immigration and Customs Enforcement (ICE) priorities have been redefined to ensure agents are focusing on recent border-crossers — defined as those who came after Jan. 1, 2014 — along with convicted criminals, suspected terrorists and potential threats to national security.  Farm workers who have lived in the United States for more than a year do not appear on that list of priorities.  If history is any guide, approximately 55 percent of the 1.2 million unauthorized youths who met the criteria for the Obama administration’s original DACA program at its launch in 2012 had applied for relief from deportation through July 2014, according to the Migration Policy Institute.

Also, falsely-documented workers would be justifiably concerned about the prospect of the president’s successor or a future Congress unraveling his actions and eventually deporting them.  A future administration could try to reverse some of his policies, and any Republican president would be under great pressure to do so.  That would leave falsely-documented workers who have lived in the country for at least five years especially vulnerable.

What action can employers take to assist current employees?

As a threshold matter, employers should have no reason to believe that any employee is eligible for Executive Action because every employee that works for you is presumably work authorized — as evidenced by a properly completed Form I-9.  On the other hand, any employee who may benefit from this program in the future is currently not authorized to work.  An employee who discloses his unauthorized status places the employer on notice of that individual’s lack of employment authorization.  Continued employment of someone whom the employer knows to be unauthorized exposes the employer to liability under federal immigration laws.  So it is not recommended that employers proactively seek to assist employees with the deferred action process.

However, the lawful employees of a company may have friends or relatives (not employees of the company) who are seeking information about how to apply for deferred deportation and work authorization.  These employees may also have legitimate concerns that their relatives may be taken advantage of by unscrupulous notarios, consultants or attorneys who prey on vulnerable immigrants with promises of a changed legal status in exchange for a large sum of money, and deliver nothing.  It would be much better for those individuals to seek advice from a local law school immigration clinic.  Pacific McGeorge School of Law (Sacramento), U.C. Davis School of Law, Stanford Law School (Palo Alto), University of Arizona College of Law, and other law schools have excellent, affordable legal clinics that could assist with the deferred action program.

Employers may consider (after consulting with counsel) posting a flyer in Spanish with the following information:

If you have a friend or relative who may be eligible for President Obama’s Executive Action on immigration, you should tell them:

1.  Do not tell their employer they are applying for deferred action when asking for employment verification documents.  That could put the employer on notice they are not currently authorized to work and force the employer to terminate employment.

2.  Beware of unscrupulous notarios, consultants or attorneys who make false promises and take clients’ money without delivering results.  Call a local law school immigration clinic such as [Name of Clinic and phone number] or other reputable organization to seek assistance in applying for deferred action — do not ask their employer for help.

What if an employee asks me for a letter or other evidence of employment history in order to apply for deferred action?

Employees frequently ask for evidence of employment history for many reasons other than applying for deferred action.  Banks, schools, and landlords routinely ask for such employment verification documents.  So an employer should not assume or ask if the request for employment records are for qualifying for deferred action.  For the employer and the employee, it’s simply better not to know.  Also, there are records other than employment documents an employee may provide to establish residency in the United States.

Learning that your employee is applying for deferred action could put the employer at risk of having constructive knowledge that an employee is not work authorized.  Western Growers is seeking further guidance from government agencies to ensure that employers are not exposed to legal risk while employees apply for and await employment authorization.  However, employers must be aware that unless and until such guidance is issued, it is illegal to continue to employ a worker known to have applied for deferred deportation and work authorization.

What if an employee who receives deferred deportation and work authorization comes forward and identification documents are different than what were presented at the time of hire?

This is a potentially vexing issue, particularly for employers with “dishonesty policies” that say employees should be disciplined or fired if they are found to have lied.  Assuming that the person now has a valid Employment Authorization Document (EAD), the individual is employment-authorized.  However, the same individual may have violated the employer's dishonesty policy.  As with any company policy, and in particular those that lead to adverse action, employers should apply the policies consistently and without regard to any protected characteristic, including race, national origin and citizenship status.  Employers that fail to treat employees equally may be subject to a charge of discrimination.  Unfortunately, there is presently no safe harbor that allows employers to treat deferred action beneficiaries differently from other employees who violate company rules.  Employers with such policies may consider amending such policies, but not before consulting with legal counsel.

Once an eligible individual is successfully registered for the new or expanded deferred action program, he will be issued an EAD valid for up to three years.  The EAD is an acceptable Form I-9 List A document proving identity and employment authorization.  If an employee presents a new EAD, complete a new Form I-9 with the new information and attach it to the old I-9.  Also attach a memo explaining that the new I-9 and change of information is due to the employee informing you and providing proof that she has obtained work authorization under the president’s Executive Actions.  Failure to do so may result in an expensive I-9 paperwork violation.  Don’t forget to update tax and other reporting information related to the employee.

If an employer has had to terminate an employee resulting from an ICE audit, could that employee be rehired if he is eligible for deferred action?

Absent guidance by the government to the contrary, an employer could not rehire an employee whose application for deferred action is in pending status.  However, once the employee receives his work authorization document, there should be nothing prohibiting the employer from rehiring that work authorized individual.

Are there any steps employers should take now to prepare?

Employers should be aware that the executive actions create an interagency working group to identify policies and procedures that protect workers from exploitation and violations of worker rights.  The agencies in the group will include DOL, DHS, Justice Department, Equal Employment Opportunity Commission and National Labor Relations Board and will seek to ensure workplace enforcement without fear of retaliation, ensure that law enforcement agencies aren't exploited by those who wish to undermine workers' protection, and ensure that federal labor, employment and immigration laws are enforced consistently.  This means that employers should be vigilant in auditing their Form I-9s and reviewing policies and practices to ensure they are compliant with immigration, employment and labor standards, in anticipation of a government audit.

This is general and preliminary guidance.  Employers should consult experienced immigration and employment counsel to assess the extent to which the president’s executive actions will impact their particular business and look for updates from Western Growers as information is made available.