Note: The following commentary is based on legislative language as it was introduced and does not reflect any changes that may be made during legislative proceedings. Dairy producers and their current employees stand to gain significant benefits from passage of a proposed immigration bill introduced in the U.S. Senate in late April.
Negotiators who have been lobbying on behalf of the ag sector say the bill puts farmers “in as good a position as any in the business community.”
The following commentary explains the bill and provides comments from officials who spoke on the condition of anonymity about the bill’s most sensitively negotiated elements, many of which they say will “likely be a big winner” for dairymen.
New legal, blue card workers
The bill establishes that dairy and other agricultural workers who in recent years worked 100 days in the industry can apply for a new blue card program.
If accepted, it would make them legal aliens and provide a path to permanent residence status. The spouses and children of these workers would also qualify for a blue card.
Upon passage, workers could apply for the program if they:
• Worked for at least 100 days in ag during the two-year period ending Dec. 31, 2012
• Have not committed a felony or more than three misdemeanor offenses (as those crimes are defined in the state in which they were committed)
• Have not participated in unlawful voting
Qualified workers who apply for legal alien status as a blue card worker would be required to:
• Pay an application fee
• Pay a $100 fine
• Pay all back taxes due
• Submit themselves for fingerprinting and background checks
• Submit themselves for possible interview
A qualified worker could submit a single application for him or herself, a spouse and children.
Of most interest to dairymen is the proposal’s promise of reprieve for illegal employment in the past. Dairymen who employ blue card applicants will not be fined or prosecuted for employment of these former undocumented workers. Blue cards would be valid for up to eight years after issue.
“Blue card workers – your current employees – will be treated the same way as they are now, except with legal status,” an official who spoke on condition of anonymity said.
Faster transition to citizenship
Blue card holders could apply for permanent U.S. residence within five years of enactment of the law, if they continue to work 100 days in agriculture in each of those five years.
They would be able to legally travel to and from the U.S. on a blue card, but they could not be absent from the country for more than 180 days in any calendar year. They would also not be eligible for federal benefits as blue card holders.
After five years of qualification, these employees could apply for permanent residence if they:
• Pay an application fee
• Pay a $400 fine
• Pay all taxes during their employment period
• Submit themselves for possible interview
• Comply with other provisions required of non-ag workers gaining legal status through the new law
The current H2-A visa program, which has been largely unavailable to dairymen, would sunset one year after enactment of the new law.
“They are getting a good deal. And so are we,” another official who spoke on condition of anonymity said.
New ag guest worker program
If the law were to pass, a new guest worker program, to be called the Nonimmigrant Agricultural Worker Program, would be created. It would be administrated by the USDA, not the U.S. Department of Labor.
Experts say this is a huge boon to farmers, since the Labor Department in the past has been perceived as being non-friendly toward agriculture.
To participate in the proposed guest worker program, a dairyman would have to register with the U.S. Secretary of Agriculture through his or her local Farm Service Agency.
Registration would require the employer providing the dairy’s employer identification number, paying a registration fee and estimating the number of guest workers he or she may need.
E-Verify would be used by all those who would register for the program to confirm the legality of a potential hire’s guest worker permit.
The proposed program would allow a guest worker, once in the country, to work in any agricultural sector, in any region of the country and through at-will or contract arrangements.
Spouses and children of workers would not be eligible for legal status in the U.S. as part of their relative’s participation in the program.
A guest worker permit would be good for three years, at which time a worker could apply for a three-year renewal. At the end of the renewal period, the employee would have to return to his or her country of origin for three months before they would be eligible to apply for another guest worker permit.
How to hire a guest worker
Employers would be required to advertise their open position for 60 days and hire any interested, qualified U.S. citizens or blue card holders. Guest workers could not be used to displace current workers in good standing with their employer.
Employers who would hire guest workers would owe them three things.
First, they would have to provide suitable housing or a housing allowance in amount of average fair market rental costs for a two-bedroom apartment in the area of the workplace.
Second, they must also pay employees according to a new “adverse effect wage rate.” That rate for dairy employees would start at $10.82 in 2014 and rise to $11.37 by 2016.
The rate thereafter would rise a minimum of at least 1.5 percent annually and increases would be tied to the Employment Cost Index. Finally, they would also reimburse the costs for their guest workers to return home when his or her permit expired.
If a participating employer’s workforce was comprised of more than 60 percent guest workers, the employer would be required to pay the adverse effect wage to all employees, including U.S. citizens and blue card holders.
During the first five years of the proposed program, 112,333 guest worker visas would be available per year. These would be divvied out on a quarterly basis, with unused visas rolling over to be available in the next quarter.
The availability of visas could be adjusted up or down by the secretary of agriculture based on a number of economic considerations, including input from the industry.
A ‘historic’ proposal
The ag industry, which lobbied Congress under the united efforts of the Agricultural Workforce Coalition, praised the introduction of the legislation.
“We’ve achieved something historic,” Tom Nassif, president and CEO of the Western Growers Association said. “Each side had to make compromises. While the agreement doesn’t do everything each of us wants, each of us have come away with an agreement we can support.”
National Milk Producers Federation CEO Jerry Kozak said fixing the country’s “broken immigration system” has been one of the dairy industry’s priorities for the past decade.
“What we are working with lawmakers to do is not merely fix a broken system but scrap an old set of unworkable rules and replace it with something better – better for employers, employees, law enforcement, the economy and America.” PD
Disclaimer: The content in this article is not intended as legal advice. Consult with qualified legal counsel about your current and future employer obligations.
Walt Cooley
Editor
Progressive Dairyman
