Capital Press: New no-match rule wields heavy enforcement hammer

Repercussions could range from unpicked crops to jail time for employers.

Cookson Beecher
Capital Press

August 14, 2007

Bush Administration tries to soften the blow

SEDRO-WOOLLEY - Although the Bush Administration recently warned employers that they'd face fines, forfeiture and even "substantial jail time" for knowingly hiring people who lack legal documentation, it also took the challenges that agricultural employers face into consideration.

Economic consequences

During an August 10 news conference on border security and administrative immigration reforms, Homeland Security Secretary Michael Chertoff acknowledged that "there will be an economic consequence to tough law enforcement."

Commerce Secretary Carlos Gutierrez agreed, saying that the Bush Administration does not intend to sit idly by as the situation worsens.

Legal work force

"We will use every available tool to provide America 's farmers, ranchers and small businesses with a legal work force to stay in business and keep our economy strong," he said.

With that goal in mind, President Bush has directed the Department of Labor to review the H-2A regulations and to make changes that will provide farmers with "an orderly and timely flow of legal workers, while protecting the rights of laborers."

The president's statement also acknowledged that no sector of the American economy requires a legal flow of foreign workers more than agriculture, which has begun to experience severe labor shortages due to the tighter U.S.-Mexico border.

One step

Ag groups welcome the president's willingness to explore what's needed to provide agriculture with a stable workforce.

"This is only one step in building a better foundation for an improved, more enforceable immigration system, but it is a very important initiative taken by the administration," said American Farm Bureau Federation President Bob Stallman, who described the current H-2A program as "inefficient and in many cases unattractive to growers who would like to use it."

"Any steps we can take that will make it timely and more efficient while protecting workers' rights is positive and should be pursued," he said.

"We have heard reports of growers wanting to use the program only to find out needed workers would arrive weeks after harvest. That shows the kind of process change we are hopeful will result from this regulatory review," Stallman said.

Won't help this year

Stallman predicted that it's unlikely any changes in the H-2A program could be implemented to help growers this year. But he promised that the farm organization would press for "expeditious consideration" so that changes could be made as quickly as possible.

Austin Perez, labor specialist with the American Farm Bureau Federation, supplied some numbers to describe the challenge.

By the numbers

Last year, 32,000 H-2A visas were granted, yet agriculture needs 600,000 to 800,000 H-2A workers.

"That's the scope of the problem," Perez said. "I hope the Department of Labor realizes this. I hope it streamlines and simplifies the process."

As for how quickly he would like to see it happen, Perez was blunt: "We need it yesterday."

Jeff Stone, director of governmental relations for the Oregon Association of Nurseries, had some more numbers to supply.

Last year, one of the organization's largest growers paid more than $2 million for about 35 employees to be H-2A workers.

"We have 21,000 employees in the industry here in Oregon ," he said.

Will be a challenge

Stone also said that with unemployment currently at 4.6 percent, finding willing workers is a challenge.

During the August 10 press conference Commerce Secretary Gutierrez took a similar tack, pointing out that with historically low 4.6 percent unemployment, "it is clear there are jobs that Americans aren't willing to do or that Americans are not available to do, and we need to acknowledge this reality."

Calling "this reality" one piece of a much larger puzzle, Guttierez said that "ultimately, Congress will have to pass comprehensive immigration reform."

"Without reform, we will also see many of our agricultural products coming from overseas," he said. "And without reform, small business and farmers are going to go out of business. This issue is not going to go away: Congress needs to act."

More immigration measures:

Here is some more information about other immigration-related topics released by the Bush Administration:

Border security:

°Border security. Tighter border. By Dec. 31, 2008 , the Administration plans to have 18,300 Border Patrol agents; 370 miles of fencing; 300 miles of vehicle barriers; 105 camera and radar towers; and three additional UAVs.

It will also work to have 1,700 more Border Patrol Agents and an additional UAV by 2009.

Catch and return:

°Catch and return. The Administration will maintain its policy of "Catch and return" policy for illegal aliens apprehended at the border.

Communities:

°Communities. The Administration is training hundreds of state and local law enforcement officers to address illegal immigration in their communities.

The strategies they will use include a broad array of enforcement tools, such as formal task forces, greater use of the ICE Law Enforcement Support Center , delegated border search-and-seizure authority under Title 19, and enhanced partnerships to address location-specific threats, such as gangs.

Removal of illegal aliens:

°Removal of illegal aliens. By this fall, U.S. Immigration and Custom Enforcement Teams devoted to removing fugitive aliens will have been quintupled in less than 3 years.

In 2005, there were 15 seven-member Fugitive Operations Teams. As of this week, there are 68, and there will be 75 by the end of September.

Staff writer Cookson Beecher is based in Sedro-Woolley , Wash. E-mail: cbeecher@capitalpress.com

" . . . not are we only going to catch a larger percentage (of employers violating the law), but with these tools, once we do catch somebody, there's going to be no place to hide." - Michael Chertoff, Secretary, Homeland Security Department

SEDRO-WOOLLEY , Wash. - Crops left unpicked; crops not planted.

Mass firing of workers; jail time for employers.

These could be some of the repercussions of the Bush Administration's new no-match rule, warn some key Western ag leaders.

Released on Aug. 10, the new rule outlines what employers need to do when they receive letters informing them that an employee's name doesn't match his or her Social Security number.

Employers who don't follow the procedures laid out in the new rule face prosecution for violating the law.

3-step procedure

Those who follow the rule's 3-step procedure gain safe-harbor protection even if the worker turns out to be in this country illegally.

In the recent announcement of a broad sweep of federal reforms directed at border and immigration issues - among them the new no-match rule - Homeland Security Secretary Michael Chertoff and Commerce Secretary Carlos Guitierrez put it on the line.

Until Congress choses to act on immigration reform, the Bush Administration is going to take some "energetic steps" of its own "to strike at the magnet that brings undocumented workers into this country."

"If we have worksite enforcement directed at illegal employment, we strike at that magnet," said Chertoff.

Holding employers accountable

Chertoff also emphasized that "employers have to be held accountable if they are given clear notice of the fact that they may be hiring illegal aliens."

The no-match rule will go into effect in September.

Under the new rule, employers will have 90 days - up from the 60 days allotted in the proposed rule - to resolve no-match letters. If the employee's legal status can't be confirmed after 90 days, then the employer must fire the worker.

While some seasonal employers believe the 90-day time limit lets them off the hook because in many cases the employee will have left by then, Austin Perez, labor specialist with the American Farm Bureau Federation, warns that this could be a risky path to take.

Good faith effort

"You have to make a good faith effort to contact the worker," Perez said. "You can't just say 'the guy is gone.' If questioned about the mismatch, you'll need to show documentation that you tried to reach him."

Perez said that according to the preamble of the new rule, it's going to be up to the department's discretion as to whether an employer made "a good faith effort."

As for hiring the same worker again the following season, Perez warns of possible pitfalls.

"You'll be taking your chances if you hire the same employee with a different mismatch number," he said.

During the press conference, Chertoff issued a similar warning: " . . . the regulation makes clear that if you ignore a no-match letter, you are putting yourself in a position where that fact will be used against you if the time comes to assess liability."

Safe harbor

Perez said that in coming up with the new rule, the Bush Administration was trying to give employers more specific information - a bright line - about what they need to do to gain safe harbor and more time to investigate whether an employee is eligible to work in this country or not.

But he warns that this "one-size-fits-all" approach leaves out a large segment of agriculture: employers who hire workers for less than 90 days.

"There's no 'bright-line guidance' about what these employers need to do to get safe harbor," he said. "There's no guarantee in the rule that gives them safe harbor."

On the legal side of the ledger, the rule makes the employers responsible for determining if a worker should be fired or not.

"The government has taken a difficult burden in court - to prove that someone knowingly hired an illegal worker - and boiled it down to three steps," said Perez. "As a result, it has made it very simple to make cases against employers."

Ag reaction

Tom Nassif, president and CEO of Western Growers, an organization made up of growers in California and Arizona , described the new rule as "devastating" for agricultural employers.

"To tell us that this is the answer to the problem only exacerbates the problem," he said. "We know that many employees here are undocumented. This isn't helping us get workers here legally."

He warns that without a workable guestworker program,

U.S.

agriculture will be at risk.

"You'll see people making decisions about whether they want to continue farming," he said.

Enforcement instead of reform

Jeff Stone, director of governmental relations for the Oregon Association of Nurseries, said it's unfortunate that instead of getting comprehensive immigration reform, growers are getting only the enforcement side of the coin.

"We don't want to turn employers who are trying to do the right thing into criminals," he said.

In his August 10 statements about the no-match rule, Homeland Security's Chertoff warned that employers with a pattern of willful violations of the law will face "substantial jail time," if convicted.

For Stone, enforcement only fails to get at the root of the problem: Ag employers can't get the labor they need.

"I have growers right now deciding not to grow because they have no assurances of being able to get a consistent work force," he said. "That's a huge sounding bell for us."

Farm workers

United Farm Workers spokeswoman Alisha Rosas said the no-match rule and other measures announced August 10 has farm workers in turmoil.

"Right now, there's an immense level of fear - panic - in the worker community," she said.

She finds it extremely frustrating to hear the Bush Administration claiming that the rule is a response to Congress's failure to act on immigration reform.

"Providing harsh enforcement is not a solution," she said. "If the problem is documentation, they should provide a way for growers to obtain a legal workforce. Growers know that this (enforcement-only approach) will severely impact the stability of their workforce."

To read the rule:

To read the new no-match rule, go to www.dhs.gov/index.shtm. Once there, click on the "social Security No Match" link on the right-hand side of the page.

Staff writer Cookson Beecher is based in Sedro-Woolley , Wash. E-mail: cbeecher@capitalpress.com

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