Farm Labor Shortages
A Glimmer of Hope for Immigration Reform?
Bryan Little, FELS COO
July 8, 2016
The American Farm Bureau Federation is the Washington, DC-based national affiliate of FELS's parent organization, California Farm Bureau; AFBF has released a video that shines a spotlight on the frustrations of the nation’s farmers in finding workers to harvest their crops. While the video highlights peach production in Georgia, it also outlines the scope of the farm labor problem across the U.S.
Hiring a seasonal skilled workforce to bring crops in from the fields to America’s tables has proved to be difficult if not impossible for farmers. That’s why many farmers rely heavily on a program called H-2A, through which the federal government grants foreign nationals short-term visas to help harvest crops.
“This is a serious issue for farmers across America,” said AFBF President Zippy Duvall. “If you have a crop that’s ready and your harvest window is narrow and your workers show up late – you’re going to lose your crop. We’re going to have to make a choice,” Duvall added. “We either have to import our labor – workers to harvest our crops – or we’ll have to import our food.”
An informal survey of state Farm Bureaus revealed that farmers in at least 22 states using the H-2A program have been affected by administrative delays that have caused workers to arrive days and even weeks late – leading to a variety of fruits, vegetables and other crops rotting in the field.
The situation is dire for Georgia peach farmer Robert Dickey. He and numerous other farmers have found there’s simply too much red tape, too much paperwork and too many delays associated with the H-2A program. “It could cost us our farm in one season,” Dickey said.
Farm Bureau is calling for Congress to pass responsible immigration reform that provides farmers access to a legal and stable workforce. You can download the AFBF video at this link.
At the same time, Republican gadfly and one-time GOP presidential candidate Senator Lindsay Graham of South Carolina predicts Republicans will be thrashed in the upcoming fall election, and that thrashing will trigger another attempt at comprehensive immigration reform; according to Graham, “I’ll tell you what I’m going to do in 2017, I’m going to take the Gang of Eight bill (the failed 2013 comprehensive immigration reform bill) out, dust it off and ask anybody and everybody who wants to work with me to make it better to do so.”
The 2013 bill was an outgrowth of Republican's worries about their poor showing among Latino voters, and though it passed the Senate handily, it failed in the House of Representatives.
You can read more about these glimmers of hope for immigration reform in the July 5 edition of Politico, "Immigration reformers eye Gang of 8 revival."
U.S. Supreme Court Blocks Immigration Executive Action
Bryan Little, FELS Chief Operating Officer
June 24, 2016
In a 4-4 decision, the U.S. Supreme Court announced June 23 that it could not reach a decision on the President's Executive Actions on immigration, with remain subject to an injunction blocking its implementation. The case will now be returned to the Texas federal trial court, which will determine the merits of the original lawsuit. Undocumented workers who would have benefited from the expansion of Deferred Action programs will not be able to seek protection from deportation and work authorization.
President Obama first announced his immigration initiative on November 2014 as part of a series of executive actions on immigration reform, which was intended to provide temporary relief from deportation and eligibility to work in the United States under a program to be known as Deferred Action for Parents of Americans and Lawful Permanent Residents or DAPA. The initiative also provided for an expansion of the Deferred Action for Childhood Arrivals (DACA) from 2012. .
Shortly after the President’s announced DAPA and DACA expansion, Texas and 25 other states challenged the action in federal court in Texas. In February 2015, the judge temporarily blocked the implementation of the expanded DACA and DAPA, prohibiting the federal government from taking any further actions to implement the initiatives. The federal government appealed that decision to the 5th Circuit Court of Appeals, but lost that appeal on November 2015, leading to the appeal to the U. S. Supreme Court's decision.
You can read more about this in "Supreme Court splits 4-4 in challenge to Obama's deferred-deportation program; injunction remains" ABA Journal, June 23.
Numbers, Numbers, Numbers—ITINs, SSNs: What Can You Accept?
Bryan Little, Farm Employers Labor Service
June 10, 2016
The FELS’ offices receive many calls from Newsletter subscribers and FELS clients and customers seeking clarification about the many different kinds of cards and numbers employees and potential employees present for purposes of identification, employment eligibility, and tax-reporting compliance.
Some of the more common questions and their answers:
In the Form I-9 process, a newly hired employee showed me a Social Security Card whose number begins with 9. Is that a valid Social Security Number for the purpose of establishing employment eligibility verification? No, it is not. The Social Security Administration does not issue Social Security Cards beginning with the number 9. That means the card is probably fraudulent, perhaps bearing an authentic Individual Taxpayer Identification Number (ITIN) issued by the Internal Revenue Service. An ITIN always begins with 9. This card might have been created in the hope an employer such as you might not know this, would accept it as a List C document establishing employment authorization, and would then report to taxing authorities the employee’s earnings using the ITIN.
On the IRS Form W-4 he submitted for income tax withholding allowances, an employee wrote for his Social Security Number a number that begins with 9. Should I accept it? No, you should not. Because it starts with 9, the number in question cannot be a Social Security Number. It might, however, be an Individual Tax Identification Number (ITIN). An ITIN is issued by the Internal Revenue Service to an individual who is not eligible to get a Social Security Number but who has non-wage income that must be reported to the IRS. An individual with an ITIN is not supposed to be employed in the U.S.; an employment-authorized individual should have a Social Security Number (and a Social Security Card).
This situation may call into question the validity of the documentation the employee showed when you were verifying his employment eligibility on Form I-9. Agricultural employees often use a List A document such as a Permanent Resident Card—commonly called a Green Card—to establish identity and employment authorization. While not all Green Cards offered by agricultural employees are fraudulent, it is possible that if this individual is offering you either an ITIN or a non-conforming Social Security Number for payroll-tax compliance purposes, he may also have presented an invalid Green Card when you were verifying his identity and employment authorization in Section 2 of Form I-9 (remember, employment-authorized individuals are issued Social Security Cards to permit them to report their earnings.) And, of course, if the individual offered as a List C employment-eligibility document a putative Social Security Card whose number begins with 9, along with a driver’s license as a List B identity document, there is a clear problem with the validity of the Social Security Card used for that individual’s Form I-9.
- An employee’s IRS Form W-4 shows for his Social Security Number a number he says is an ITIN that begins with 9. May I report his earnings with this number? No. Again, an ITIN is intended to enable people who are not employment authorized to report non-wage income to the IRS. An ITIN is not intended to report earned income. An individual authorized to be employed in the U.S. will be issued a Social Security Card.
What to do?
Don’t ignore the situation: While it is not clear to what degree the IRS and Immigration and Customs Enforcement (ICE) share information, it is likely that ICE agents are aware of the types of payroll-tax reporting numbers that are available to individuals who are employment authorized, and to those who are not.
Review Your Forms I-9: ICE might regard a Form I-9 of an employee lacking employment eligibility that shows as the List C document a Social Security Card with a number beginning with 9 as evidence that you had constructive knowledge of that lack. Confer promptly with counsel to decide how to proceed.
Look for Appropriate Additional Documentation: If the employee in question has offered a Social Security Card indicating it is valid only with an employment authorization, be sure you examine that employment-authorization documentation. If the employee can’t or won’t produce that documentation, that employee’s employment authorization is questionable.
Discharge an Employee Who Admits he is not Eligible to be Employed in the U.S.: An employee confronted with possibly fraudulent documents might admit he is not employment authorized. In this instance, you must fire that employee.
There are resources available to help you sort out what number is intended for what purpose:
- This article from Thompson Reuters Tax & Accounting Blog “Ask the Expert: Is it a problem that we have received a Form W-9 with a taxpayer ID number starting with a “9”?” offers a good explanation of what an ITIN is and what it’s meant to do.
- This article from the Social Security Administration website explains the agency’s policy with respect to the numbering system it uses for Social Security Cards.
ICE Audit Activity -- UPDATE
FELS continues to receive reports about agricultural employers receiving Immigration & Customs Enforcement agency audits. Audits are usually initiated through Notices of Inspection (NOI's). An NOI which may be served either in person, or through certified mail and requires the employer to produce certain original Forms I-9 within 3 business days. An NOI is often accompanied by subpoena to produce other employment records (like payroll records) to permit ICE to verify the employment of the employees subject to the Forms I-9 covered by the NOI.
In some cases, employers are informed that substantial numbers of their employees cannot be found to be legally eligible to work in the U.S. and must be terminated within 10 days. However, it is not uncommon for employers who have conscientiously maintained I-9 procedures and records to emerge without being penalized (other than a loss of workers previously believed to be legally eligible to work) from an ICE audit.
FELS has also received information that California agricultural employers are being subpoenaed to provide testimony and documents concerning employees who have given employers Social Security Numbers beginning with the prefix 900, which are invalid. See: https://secure.ssa.gov/poms.nsf/lnx/0110201035.
This renewed interest on the part of the federal government in the work eligibility of employees raises an important point: you are free to self-audit your Forms I-9 to ensure you have a valid I-9 for every employee who has worked for you for whom the law and regulations require you to have an I-9. In short you must:
- Have a Form I-9 for every employee you have hired since November 6, 1986, and keep that form for three years or one year after that employee leaves your employment, whichever is later.
- Be certain you follow the "Thursday Rule:" if you hire an employee on Monday, be sure you have a valid Form I-9 on file for that employee no later than the end of the third full business day after the day you hired that employee.
- Be certain that if one of your employee assists a new employee in completing Section 1 or translates to allow the new employee to complete Section 1, that employee completes and signs the "Preparer and/or Translator Certfication" at the bottom of Section 1.
- Be sure the new employee signs the employee signature block at the end of Section 1.
- Double-check that the date of new employee signature matches the date on which the preparer/translator signs the certification.
- Be sure the employee indicates an immigration status (citizen, noncitizen U.S. national, lawful permanent resident, or alien authorized to work) and provides appropriate USCIS numbers as specified.)
- Be sure you do not specify documents (i.e. do not ask someone who "looks Mexican" for a Green Card (Permanent Resident Alien card) or ask somone who appears to be Caucasian or who might expect to be "American" to provide a Driver's License and Social Security Card; offer the new employee a copy of the List of Acceptable Documents on page 9 of "Instructions for Employment Eligibility Verfication/USCIS Form I-9" and allow the employee to select documents to demonstrate their identity and employment eligibility.
- Ensure that the employee who accepts eligibility verification documents from the new employee examines those documents in the presence of the new employee, allowing that employee to make a valid certification that he has examined those documents, that they appear genuine and to pertain to the presenter, and that to the best of that employee's knowledge the employee is elibigle to work in the United States.
- Do not accept any document that is expired on the date the Form I-9 is prepared.
USDOL H-2a Enforcement: What to Expect, How to Prepare
FELS' friends and allies, the National Council of Agricultural Employers (NCAE) and teh American Nursery & Landscape Associaiton (now AmericanHort) have published a handy document for users of the H-2a program. It seems USDOL have decended on central Ohio in late July and early August of 2015, and we can't discount the possiblity they'll find their way to California.
ANLA and the Washington, DC law firm of Siff & Lake compiled a helpful survival guide to help H-2a users get through USDOL audits. You can download it at this link.
USCIS Posts FAQs on AB 60 Driver's Licenses
U.S. Citizenship and Immigration Services on May 19 posted on its website guidance for employers of employees who present a driver’s license issued by a state to persons who cannot submit satisfactory proof of legal presence in the United States. In sum, the guidance states that such a license:
• Must be accepted in the Form I-9 employment eligibility verification process as a List B document establishing identity if it otherwise meets the requirements of a List B document (i.e., it contains a photo of or information identifying the individual presenting it) and the employer determines it reasonably appears to be genuine and to relate to that individual.
• Does not, in and of itself, support a conclusion that the employer had actual or constructive knowledge.
Executive Actions on Immigration
On November 20, 2014, the President announced a series of executive actions to crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.
These initiatives include:
President’s Executive Actions on Immigration
Yesterday, President Obama announced a series of changes in policy regarding enforcement of immigration requirements. He believes these changes are in the nature of changes in emphasis under enforcement policy. For example, the Administration characterized the 2012 Deferred Action Program for Childhood Arrivals (DACA) as an instance of deciding to de-emphasize seeking deportation of certain types aliens (i.e. those brought to the U.S. as minors who have completed high school or served in the military) in order to concentrate resources on deporting criminal aliens. This interpretation has generated a strong negative reaction among many political leaders and commentators. There has been much speculation as to how this action will impact various national policy questions in the remainder of 2014 and in the last two years of the President’s term.
Courtesy of California Department of Motor Vehicles
DMV Announces Implementation of AB 60 Drivers' Licenses
SACRAMENTO - DMV announced October 3, 2014 that it will begin the process of implementing AB 60 (Alejo)-the new law requiring DMV to issue driver licenses to undocumented persons-by drafting new regulations and preparing field offices to process new applications. The new law becomes operative by January 1, 2015.
"This law will improve public safety for all Californians by helping ensure that undocumented persons pass a written and driving test and obtain proof of insurance and a license before driving their vehicles in California," said DMVChief Deputy Director Jean Shiomoto. "Thanks to AB 60, we believe more drivers will be safer on California roads."