Immigration and Labor Rights

Friday, 03 April 2015

Cesar Chavez Day and National Farmworker Awareness Week

Tuesday was Cesar Chavez Day – a day to honor the farmworker civil rights leader that continues to inspire many. Cesar Chavez Day marked the culmination of Farmworker Awareness Week. Farmworker Awareness Week is an opportunity for farmworker groups across the country to conduct events and engage in social media to raise awareness of the contributions farmworkers make and the challenges they face. To mark Cesar Chavez Day, Farmworker Justice attended a ceremony at USDA naming a courtyard in honor of Cesar Chavez; participated in a panel discussing immigration and the agricultural sector to highlight the need for comprehensive immigration reform with a path to citizenship for farmworkers; and delivered a petition with over 21,000 signatures to the EPA urging them to finalize the update to the Worker Protection Standard which protects farmworkers from pesticides. Of course, the fight for justice for farmworkers extends beyond this week and we look forward to continuing our work with many of you to make this happen.

Texas v. US

As reported in the last update, the Department of Justice has requested that the Fifth Circuit Court of Appeals issue an emergency stay blocking the district court judge’s injunction of DAPA and expanded DAPA until the appeal can be heard. The Fifth Circuit Court will hold oral arguments on the DOJ’s request for an emergency stay on April 17th. Presumably the court will make a decision soon thereafter. Even if the 5th Circuit fails to stay the injunction, this does not mean that the Obama Administration has lost the case, it simply means that the Court wants to leave the injunction in place until they have time to decide the full appeal. The Fifth Circuit also set a briefing schedule for the appeal of the district court’s injunction. The final brief will be due on May 18th. The court has not yet scheduled a date for oral arguments of the appeal and it has not disclosed the names of the judges who will sit on the 3-judge appeals panel.

Potential applicants for DAPA and expanded DACA are encouraged to continue saving money and collecting documents to prepare for the application process once it is implemented. For more information on DAPA and expanded DACA, read Farmworker Justice’s article (in English and Spanish) in the most recent Catholic Migrant Farmworker Network Newsletter attached to this email.

The House: Mandatory E-Verify

Immigration advocates and some others, including many agricultural employers, continue to highlight the devastation an enforcement-only approach such as mandatory E-Verify would have on our economy, on our nation’s aspiring Americans and on industries such as agriculture. Earlier this week, 61 Members of Congress (55 Republicans and 6 Democrats) sent a letter to Speaker Boehner and Judiciary Chairman Goodlatte expressing their concern that enacting mandatory E-Verify without ensuring “a legal, reliable workforce in both the short and long term” would “cause serious problems for our domestic agricultural industry and our nation’s economy. Farmworker Justice agrees that mandatory E-verify on its own would be devastating for farmworkers and their families. Our broken immigration system must be addressed through comprehensive immigration reform that provides a path to lawful permanent residency and eventual citizenship for the 11 million, including farmworkers and their families. We would strongly oppose any effort to pair mandatory E-Verify with a new guestworker program for agriculture. This would result in even greater devastation for agriculture, as US workers would be displaced by the new visa program, guestworkers would face great worker abuses, and the current experienced undocumented workforce would be pushed into an underground economy where they would be even more vulnerable to exploitation.

The letter also critiques the H-2A program as being unworkable for employers. We disagree and are educating congressional offices about the recent growth of the H-2A program as employers increase their use of it. At the same time, the increase in the numbers of employers using the H-2A program concerns us as the worker’s temporary nonimmigrant status and their tie to the employer that brings them here leads to great vulnerability and exploitation of both H-2A and US workers. Immigration reform is urgently needed.

The number of Republicans on the letter demonstrates a challenge House leadership may have trying to pass legislation such as mandatory E-Verify on its own. We will be advocating to ensure legislation such as E-Verify does not pass without broader immigration reform, including a path to citizenship.

Senate Hearing

Last week, the Senate Homeland Security and Governmental Affairs Committee held a hearing on “Securing the Border: Defining the Current Population Living in the Shadows and Addressing Future Flows.” The witnesses were Jeffrey S. Passel, Ph.D., Senior Demographer, Hispanic Trends Project, Pew Research Center; Daniel Garza, Executive Director, The LIBRE Initiative; Madeline Zavodny, Ph.D., Professor of Economics, Agnes Scott College and Adjunct Scholar American Enterprise Institute; Randel K. Johnson, Senior Vice President, Labor, Immigration, and Employee Benefits, U.S. Chamber of Commerce; and Marc R. Rosenblum, Ph.D., Deputy Director on Immigration Policy Program, Migration Policy Institute. The hearing focused on future guestworker programs, with some background discussion of demographic information regarding where the undocumented population resides and in what occupations they work (presumably to address where such future guestworker program would be needed). 

With the exception of Passel, whose organization does not take policy positions, the panelists advocated for a new “market-driven” guestworker program with visa portability. The witnesses generally agreed that wages, payroll treatment and benefits provided to guestworkers should be the same as those provided to US workers. One point of disagreement was that Rosenblum argued for robust workplace enforcement of labor protections, whereas Johnson and Garza expressed concerns related to protecting "innocent employers" from investigations by the Department of Labor's Wage and Hour Division. Another point of disagreement was the issue of circularity, that future guestworker should be encouraged to go back and forth between the US and their country of origin. Zavodny and others emphasized encouraging circularity, while Rosenblum said that workers shouldn't necessarily be forced to return. If workers have jobs and want to stay in the US, there should be a way for them to adjust to permanent residence status. 

Farmworker Justice opposes the notion of guestworker programs; however, we supported the agriculture compromise in last Congress’s Senate comprehensive immigration reform bill, S. 744, recognizing the political realities at the time and believing that the bill would benefit immigrants, including farmworkers, because of its path to citizenship for the undocumented and some future guestworkers, as well as key worker protections. Regarding the question of the permanency of “guest” workers, Farmworker Justice believes that guestworkers should be able to become full members of our society through a path to citizenship. While some foreign workers may choose not to remain permanently in the United States, that choice should be theirs. Even for those workers who may eventually return to their country of origin, lawful permanent residency gives them freedom and workplace equality that even the best structured guestworker program will never be able to offer. From our perspective, a discussion about future guestworker programs outside of the context of comprehensive immigration reform and without key stakeholders is troubling. 

New H-2A Sheepherder Regulations

The Department of Labor has been ordered to properly promulgate rules for the H-2A open range livestock workers by a federal court. The plaintiffs in the lawsuit are US workers and former herders who would like to be sheepherders if they were offered living wages and better living conditions. Range sheepherding is almost exclusively done by foreign H-2A workers and the unreasonably low-wages have remained stagnant for years, preventing US workers from entering the labor market. It’s high time for DOL to reform this inhumane program. The Department of Labor’s notice of proposed rulemaking is due out by April 15th. Keep an eye out for requests to sign-on to comments.

In advance of the new regulations coming out this April regarding protections for H-2A sheepherders, employers are already crying wolf that they will go out of business if they have to pay a living wage or provide decent housing for their employees. The employer-driven media, however, fails to note that the monthly wage provisions are just $750 a month in most states for sheep and goatherders to tend their flocks around the clock. While the federal law exempts sheepherders from the minimum wage, herders in Oregon and California are covered by state minimum wage laws and receive higher wages, $1,603.00 and $1,422.52 a month respectively. The ranchers in these states have not gone out of business paying these wages. Sheepherder wages may even need to be higher in order to attract US workers to the jobs. The DOL should come up with a formula that takes into account the adverse effect wage rate used for all H-2A non-sheepherders. If wages are increased across the H-2A sheepherder program, the playing field will be leveled for employers across the US.

Herders also often live in extremely isolated conditions, with some workers living in small mobile homes with no heat or refrigeration. With no access to stores, the herders rely on their employers to bring them food once a week and there have been many stories of workers going hungry. Herders’ extreme isolation and low wages make them very vulnerable to wage theft and trafficking. We look forward to DOL’s upcoming reforms to improve wages, living and working conditions for workers in this historically abusive program.

The H-2B Rules

Centro de Los Derechos del Migrante and Polaris have created a Change.org petition urging the Department of Homeland Security and the Department of Labor to jointly issue the 2012 H-2B rules that provide for increased worker protections for H-2B temporary nonagricultural workers. You can sign-on to the petition here

by Megan Horn
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Tuesday, 31 March 2015

Thousands of farmworkers in San Quintin Valley, Baja California, Mexico, began a labor strike on March 17th, protesting low wages and poor working conditions. The striking workers also shut down 55 miles of the Trans-Peninsular Highway for several days, blocking the movement of produce from Baja California to the US. The highway blockade has been stopped for now, but the work stoppage continues.

The workers are paid about $10/day, and for most wages have not increased in years. In addition to higher wages, the workers seek employers’ compliance with their obligation to pay into Mexico’s social security and health insurance system as well as with labor laws. The workers’ alliance also demands an end to sexual harassment in the fields. Last Wednesday, an employer representative offered the workers a 6% increase—that is, just $.60 more per day— an amount the workers understandably found offensive. As negotiations continued the employers increased their offers to an 8% increase per day. The workers, represented by the Alliance of National, State and Municipal Organizations for Social Justice, a coalition of indigenous groups, countered with a demand to be paid $19 a day. The strike and the negotiations have continued into this week. The organizers have also said that they plan to call for a boycott of goods produced in the region.

Many of the fruits and vegetables grown near San Quintin in the Mexican state of Baja California are grown on large farms that use modern technology and are sold in major US supermarket chains and restaurants. Some of the farm operators are co-owned by or affiliated with U.S. companies. Often, US consumers will not notice a price difference between produce grown in the US and produce grown abroad. Mexican farmworkers should be earning higher wages and the laws should be enforced. 

Farmworker Justice stands in solidarity with these striking farmworkers who seek to improve their working conditions and be paid a living wage. The U.S. government should use its influence with U.S.-based corporations and with the Mexican government to press for enforcement of labor rights and improvement in wages and working conditions. 

A few of the farmworker leaders in San Quintin drew on organizing experience and relationships in the US with the United Farm Workers union and the Coalition of Immokolee Workers. The United Farm Workers started an on-line petition to US retailers asking that they demand that they hold the growers, such as Driscoll’s accountable. An important solution to address these problems is the Equitable Food Initiative, which Farmworker Justice co-founded with other organizations, including the UFW and Costco Warehouse. The EFI, www.equitablefood.org, offers training of workers and managers and a certification system to assure growers, workers and consumers that there is compliance with meaningful standards on wages and working conditions, pesticide safety, and food safety. The EFI is working with two farms in Baja California in Mexico as well as farms in the U.S. and Canada.  

by Megan Horn
(0 total comments)
Friday, 20 March 2015

The fight over President Obama’s executive actions has continued in the courts and in Congress over the last few weeks. Last week, the Department of Justice (DOJ) petitioned the 5th Circuit Court of Appeals to issue an emergency “stay” lifting the temporary order preventing the Obama Administration from implementing DAPA and expanded DACA. The 5th Circuit has given Texas and the other states until March 23rd to respond. DOJ requested that the court issue a decision on the stay by March 27th; however, the court is not bound by this request. The legal requirements for obtaining such a stay are difficult to meet. DOJ has also filed an appeal of Judge Hanen’s temporary injunction, which is also proceeding in the 5th Circuit, but a decision is not expected for at least a few months. DOJ is requesting first that that the Court of Appeals block the entire order, or alternatively that the 5th Circuit limit the order to Texas – the only State that Judge Hanen found would be harmed by the programs – or at the very least limit the order to the states that have sued the Federal Government and allow the programs to be implemented in those states that welcome them.

Fourteen states and the District of Columbia filed a brief in support of the Federal Government’s request for a stay. These states, led by Washington and California, argue that they welcome the executive actions and will be harmed by the judge’s order to delay its implementation. The 14 states (where most of the undocumented population resides) predict that rather than harm their economies, as the states that have sued are claiming, the deferred action programs will bring economic benefits to their states.

Meanwhile, the main case continues in the district court in Texas. On Thursday, Judge Hanen held a hearing on the plaintiff states’ allegations that DOJ misled the judge by claiming that the immigration action hadn’t been implemented. Pursuant to the DAPA and expanded DACA memo, the Department of Homeland Security (DHS) began granting deferred action and employment authorization for DACA recipients for 3 years on November 24, 2014, a change from the 2 year grants previously issued. DHS ceased issuing 3 year grants of deferred action and work authorization as soon as the Judge’s temporary order blocking the implementation of the DAPA & expanded DACA memo was issued. During that period, about 100,000 DACA applicants were granted deferred action and work authorization for 3 years.

Congressional Hearings

House and Senate committees have been busy holding hearings and markups focused on attacking President Obama’s executive actions and highlighting their anti-immigrant, enforcement-only approach. Of note, the House Judiciary Committee marked up the bill formerly known as the “SAFE Act”, now called the “Michael Davis, Jr. in Honor of State and Local Law Enforcement Act,” HR 1148, which would criminalize people for being undocumented in the US and would undermine community safety by requiring local law enforcement agencies to enforce immigration law. This month, the House Judiciary Committee also passed the “Legal Workforce Act,” a mandatory E-Verify bill, along with two bills limiting access to due process for asylum seekers, unaccompanied minors and other vulnerable immigrant populations.

In the midst of these attacks on immigrants and their contributions to our society and economy, one member of Congress lifted up the positive contributions of farmworkers. During the House Subcommittee on National Security Health Care, Benefits & Administrative Rules hearing on “The Fiscal Costs of the President’s Executive Actions on Immigration,” which generally attacked the President’s executive actions as well as tax credits for low-income working people with US citizen and lawful permanent resident children, the witness from the Heritage Foundation, Robert Rector, revealed the classist undertones of this debate by denigrating working people without a college education. Rep. Ted Lieu (D-CA) responded to Rector’s statements by stating that it may be “easy for people like you and me who wear ties and work in offices to cast aspersions on people who have 10th grade educations,” but farmworkers have died so that we can have cheaper groceries. Lieu spoke passionately about Maria Isabel Jimenez, a 17-year-old farmworker in California, who died of heat stroke saying that she “has given more to American society than you or I ever will.”

Agriculture Groups Oppose Mandatory E-Verify

The Agriculture Workforce Coalition sent a letter to House leaders Tuesday expressing their opposition to Rep. Lamar Smith’s (R-TX) “Legal Workforce Act.” Over 140 agriculture groups signed on to the letter that stated that the groups would oppose mandatory E-Verify in agriculture until Congress creates a “solution for agriculture.” Unfortunately, the letter stopped short of calling for a path to citizenship for our nation’s current farmworkers or even a path to permanent legal status. Instead, the letter calls for “work authorization for experienced agricultural workers and a new, flexible guest worker program for long term stability...” Work authorization falls short of a path to lawful permanent residency and eventual citizenship.

GAO Report Highlights Abuse of H-2 Workers

A recent GAO report “H-2A and H-2B Visa Programs: Increased Protections Needed for Foreign Workers” highlights the extensive nature of abuses in the H-2A and H-2B programs. The report found that H-2 workers may be required to pay recruitment fees to obtain jobs in the United States and noted that workers who were indebted due to the payment of recruitment fees are more vulnerable to abuses in the workplace as they are less likely to complain. Data in the report also highlighted the rampant gender and age discrimination in the H-2A program, as the vast majority of H-2A workers are men below the age of 40. One important recommendation in the report is that DHS publish the names of recruiters listed on the I-129 applications to USCIS.

The H-2B Program is Running Again

As you may be aware, the Department of Labor (DOL) and US Citizenship and Immigration Services (USCIS) temporarily suspended processing of H-2B applications earlier this month due to a court order finding that the DOL has no authority to issue labor certification in the H-2B program. USCIS & DOL announced that they will continue processing applications after DOL filed an unopposed motion for a stay of the court order until April 15th earlier this week. The Department of Homeland Security and DOL also announced that they will jointly promulgate an interim final rule by April 30th to resolve the issue of authority. 

Farmworker Justice honors the contributions of farmworkers to our nation’s agricultural abundance. We will continue to fight for fair immigration reform and equal labor rights that reflects the contributions of farmworkers and their value to our society.

by Megan Horn
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