I talked to quite a few sources yesterday about implications of the swine flu. In particular, the H-2A workers In Mexico cannot be processed until May 6 because U.S. consulate offices will be closed at least until then. Look for coverage in The Packer on that story.
This development perhaps has the most produce-related implications for agricultural employers in the Southeast, who were waiting on workers to harvest blueberries, peaches and other commodities.
While the softer economy has freed up some workers for agriculture, a small but growing minority of growers rely on the H-2A program. The imperative for U.S. agricultural employers is quick resolution of the holdup in H-2A worker processing. If U.S. consulate offices don’t open within a couple of weeks, significant regional crop losses resulting from labor shortages are anticipated.
As if growers didn’t have enough to worry about, the United Fresh Produce Association sent a member alert yesterday with information about a chance in federal immigration enforcement policy. From the United communication:
Today, the Department of Homeland Security announced new policy direction for worksite enforcement through the Immigration and Customs Enforcement (ICE) division.? Under the new guidelines, ICE agents will be instructed to take action against employers and supervisors who "knowingly" hire illegal workers as well as the workers themselves.? This will effectively shift the department's focus away from unauthorized workers to employers.
Under this new policy, ICE and other relevant agencies will conduct undercover investigations that focus on establishing a pattern of willful abuse by employers.? They intend to focus on mistreatment of workers, document fraud, money laundering and other violations of current federal law.? In addition, ICE will continue to arrest and process for removal any illegal workers who are found in the course of these worksite enforcement actions in a manner consistent with immigration law and DHS priorities. Furthermore, ICE will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.
Here is the fact sheet on the issue from the Department of Homeland Security:
April 30, 2009
Contact: DHS Press Office, 202-282-8010
Worksite Enforcement Strategy
• The Department of Homeland Security (DHS) has a vital responsibility to enforce the law and engage in effective worksite enforcement to reduce the demand for
Illegal employment and protect employment opportunities for the nation's lawful workforce.
• An effective, comprehensive worksite enforcement strategy must address both employers who knowingly hire illegal workers as well as the workers themselves.
Of the more than 6,000 arrests related to worksite enforcement in 2008, only 135 were employers.
• This week, updated worksite enforcement guidance was distributed to Immigration and Customs Enforcement (ICE), which reflects a renewed Department-wide focus targeting criminal aliens and employers who cultivate
Illegal workplaces by breaking the country's laws and knowingly hiring illegal workers.
• Effective immediately, ICE will focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal
workers in order to target the root cause of illegal immigration.
• ICE will continue to arrest and process for removal any illegal workers who are found in the course of these worksite enforcement actions in a manner consistent
with immigration law and DHS priorities. Furthermore, ICE will use all available civil and administrative tools, including civil fines and debarment, to penalize and
deter illegal employment.
• ICE officers will be held to high investigative standards including:
o ICE will look for evidence of the mistreatment of workers, along with evidence of trafficking, smuggling, harboring, visa fraud, identification
document fraud, money laundering, and other such criminal conduct.
o ICE offices will obtain indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney's Office (USAO) to prosecute the targeted employer before arresting employees for civil immigration violations at a worksite.
• Existing humanitarian guidelines will remain in effect, impacting worksite enforcements involving 25 or more illegal workers. This reflects a change from
the previous threshold of 150.
• DHS is committed to providing employers with the most up-to-date and effective resources to comply with our nation’s laws.
• DHS will continue to work with partners in the public and private sectors to maintain a legal workforce through training and employee verification tools like
E-verify, which improve the accuracy of determinations of employment eligibility and combat illegal employment
• As a former border state Governor, Napolitano signed into law one of the toughest employer sanctions laws in the country in 2007 to target employers who
knowingly hired illegal workers.
Meanwhile, this communication from the National Council of Agricultural Employers said this:
HOW DO YOU RESPOND WHEN THE DEPARTMENT OF HOMELAND SECURITY (DHS) SHOWS UP AT YOUR FARM, RANCH OR BUSINESS?
April 26, 2006
The following is a summary of some practical steps that should be considered before you receive an unexpected visit by a representative of DHS or the Department of Labor
wanting to conduct an audit, execute a search warrant or apprehend employees for alleged immigration law violations:
• Review your current employment practices and procedures to make sure they comply with the law. Make sure your staff is properly carrying out your
employment verification policies and procedures in a consistent manner.
• Review your recordkeeping policies and practices to ensure that you are keeping the proper records for the required periods of time. Perform a “spot check” of I-9
Forms and other documents to make sure they are being properly and consistently filled out by responsible staff.
• Designate a management representative who is authorized to meet and talk with DHS or DOL personnel when they visit your business. Educate the representative
regarding appropriate procedures, including when to call the owner or the company’s attorney. Make sure that other employees know to refer inquiries
from the government to the designated representative.
• The company representative should always be polite and assume an attitude ofcooperation with DHS and DOL but always ask for proper identification before
doing so, if it is not offered by the government representative.
• Educate designated company representatives that DHS must have a search warrant to enter the premises of a farm or open property being used for
agricultural purposes to seize evidence or apprehend employees, unless the owner or its designated agent consents or the property is located within 25 miles of the
• In the event of a criminal investigation, as evidenced by the issuance of a search warrant authorizing the seizure of computer records and other employment related documents review the search warrant and make sure that only those items listed on the warrant are taken and make an inventory of what is taken. Call the company attorney as soon as possible to seek advice and determine how much you and other employees should cooperate, particularly with regard to interviews.