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Ensuring a Stable Workforce for Fresh Produce

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Immigration policy in this country is in shambles, and reforms of  current laws and federal regulations on the books are desperately needed if we are going to maintain a vibrant and successful fruit and vegetable industry in the United States.

United Fresh continues to make immigration reform a top policy priority and considers this one of the most pressing challenges currently facing the fresh produce industry and our members. United Fresh is committed to a three-part platform that takes on many of the challenges our members face surrounding immigration laws and regulations in the U.S.

Specifically, we

  • support an adjustment of status for experienced, but unauthorized, agricultural workers who reside in the U.S.
  • call for the reform and replacement of current agricultural worker program with a new agricultural worker visa program.
  • work to ensure that ongoing and future efforts for border security and enforcement continue as long as they are coupled with a solution to provide agriculture with a legal and stable workforce.

United Fresh has partnered with like-minded groups including produce, agriculture and business organizations, religious groups and law enforcement leaders to demand action by Congress to overhaul our current immigration laws. These groups include the Agriculture Workforce Coalition (Founding Member), Agriculture Coalition for Immigration Reform, Essential Workers Immigration Coalition, and Immigration Works USA. Collectively, these coalitions and partnerships represent thousands of businesses and community leaders from every corner of the country to insist Congress provide the political leadership needed to reform our outdated immigration system.

Finally, while immigration reform languishes in Congress, current programs such as the H-2A program have proven unworkable on a national scale and also need regulatory overhaul. The H-2A program:

  • remains costly, bureaucratic, and highly complicated to use.
  • contains administrative delays that cost farmers millions in lost revenues.
  • provides less than four percent of farm-workers.

Just recently a computer technological glitch kept agricultural guest worker visas from being processed, preventing growers from securing their workforce for harvesting their crops. In turn, while the industry waited for this to be fixed by the U.S. State Department, crops went unharvested, costing growers millions in lost revenue. United Fresh has partnered with the National Council of Agricultural Employers to develop common sense approaches that help agricultural employers whose businesses are dependent on legal workforce.

While our political leaders decide when they will take on federal immigration reform policy, United Fresh will continue to demand Congress address this labor crisis in the fruit and vegetable industry and make good on their pledges to act on immigration reform. We will work with our allies to push the development of legislation that incorporates sound agriculture provisions, pragmatic temporary worker programs, realistic approaches to the current undocumented workforce in the U.S., and reasonable requirements for the business sector dealing with employment verification processes. Finally, we will work with industry members to ensure that current federal programs that provide a legal workforce (H-2 programs) are operated in a way that minimize economic hardship on the industry.

United Fresh Action:

Recently, United Fresh joined industry allies in providing comments on a recently issued a notice of proposed rulemaking by the Department of Justice on the “Standards and Procedures for the Enforcement of the Immigration and Nationality Act.”

The Proposed Rule threatens to impose penalties on employers far beyond what Congress ever intended or how the underlying statute has ever been applied.  The current rule, in place for nearly 30 years, requires two things to find a violation and impose penalties against an employer: (1) a discriminatory intent or purpose on the part of an employer; and (2) proof that the charging party was harmed.  This is supported by judicial decisions and consistent with established Title VII law.  The proposed rule would erase those two requirements and establish a strict liability rule.

For small and seasonal businesses, particularly those in agriculture, landscaping or forestry, workers are hired quickly at the beginning of the growing or working season, and there is high turnover during the season.  A small family-owned business might have only a handful of year-round employees but may hire dozens or even hundreds of seasonal workers during a season to replace those who leave after a few weeks or even a few days.  A limited staff, often the owner or a family member, must complete a Form I-9 for each of those workers, in a workforce that is often comprised of non-citizens and workers with little or no proficiency in speaking or reading English.  If a lawful permanent resident presents a “green card” to complete the I-9 process but a U.S. citizen provides a driver’s license and Social Security card, without any prompting by the employer and where both are hired and begin work immediately, there is no intent to discriminate, no act of discrimination by the employer, and no harm to either employee.  Still, such a situation could trigger sizable penalties under this new rule.
This is a highly technical rule dealing with nuanced arguments about the degree of intent or purpose behind an action, but it carries a very real possibility of injuring small and seasonal employers, particularly those in agriculture.  The burden of this rule on the employer community will also be far greater than the estimate provided in the notice of proposed rulemaking.  The rule, as proposed, represents a costly, dangerous, and radical departure from longstanding substantive and procedural law and as a result, United Fresh and our counterparts in the industry urge that the proposed changes be revised or scrapped.  The public comment period for the proposal closed October 14, but United Fresh will provide additional updates on this issue.

Comments on Standards and Procedures for the Enforcement of the Immigration and Nationality Act

AWC Letter Opposing Mandatory E-Verify Only
Letter to Departments of State and Homeland Security on Visa Stoppages

Additional Resources:

Congressional Letter to Secretary of Labor Thomas Perez & Director, U.S. Citizenship and Immigration Services, León Rodríguez on H-2A Improvements (June 10, 2016)
AWC Washington Times Op-Ed (November 18, 2014)
AWC Testimony before House Subcommittee on Immigration & Border Security 
Agriculture Coalition for Immigration Reform “Pitfalls and Perils

Congressional Action on Immigration Reform

Reforms to current guestworker programs such as H-2A and H-2B or executive action by the Administration will not provide the permanent legislative change that is needed. What will truly ease unnecessary labor shortages and resulting lost crops experienced by our industry is an overhaul of an immigration system that is deeply flawed.

In both the House and the Senate, bills have been introduced that, on their own, would have devastating consequences for the fresh produce industry. In March of 2015, the House Judiciary Committee passed H.R. 1147, the Legal Workforce Act, which would require all U.S. employers to use E-Verify to ensure their employees have official work authorization documentation. Operated by U.S. Citizenship and Immigration Services (USCIS), the E-Verify system checks the Social Security numbers of newly hired employees against Social Security Administration and Department of Homeland Security records, ensuring they are either citizens or legal immigrants who are eligible to work in the U.S.

In late April of 2015, Senator Chuck Grassley (R-Iowa) introduced S. 1032, The Accountability Through Electronic Verification Act of 2015. Much like its counterpart in the House, S. 1032 would also require employers to use the E-Verify program but would lift or decrease penalties for companies who do not comply but can prove they “acted in good faith.”

Additional Resources:

June 18, 2015 | Congressional Letter to State Department Requesting Prioritization of Resolution to H-2A Visa Glitch

May 30, 2015 | Congressional Letter Regarding Mandatory E-Verify Only

H-2 Guestworker Visa Programs

The H-2A program allows for the temporary admission of foreign workers to the United States to perform agricultural labor or services of a seasonal or temporary nature, provided that U.S. workers are not available. In general, for purposes of the H-2A program, work is of a temporary nature where the employer’s need for the worker will last no longer than one year. Thus, an approved H-2A visa petition is generally valid for an initial period of up to one year. An employer can apply to extend an H-2A worker’s stay in increments of up to one year, but an alien’s total period of stay as an H-2A worker may not exceed three consecutive years. An alien who has spent three years in the U.S. in H-2A status may not seek an extension of stay or be readmitted to the U.S. as an H-2A worker until he or she has been outside the country for three months.

The H-2B program provides for the temporary admission of foreign workers to the U.S. to perform temporary nonagricultural service or labor, if unemployed U.S. workers cannot be found. In order for work to qualify as temporary under the H-2B visa, the employer’s need for the duties to be performed by the worker must be a one-time occurrence, a seasonal need, a peak load need, or an intermittent need. The employer’s need for workers under the H-2B program must generally be for a period of one year or less, but it could be longer in the case of a one-time occurrence. An alien’s total period of stay as an H-2B worker may not exceed three consecutive years. An H-2B alien who has spent three years in the U.S. may not seek an extension of stay or be readmitted as an H-2B worker until he or she has been outside the country for three months.

Additional Resources:
GAO 2012 Recommendations