Executive Orders on Immigration
With all the political turmoil we are enduring each day, there is little inspiration in what we see and hear and in our fast-paced lives. We are constantly distracted by posts, tweets, soundbites, and flash alerts that the new Administration in Washington, D.C. seems to cause daily.
Part of this is because we have so many ways to be in touch, and the media needs to keep those touch points in full swing each day. Settling in for one half-hour news broadcast each day is a thing of our grandparents’ generation; the push to rush information to our fingertips gets crazier every day!
For the local farming community, it’s a constant worry about where the hands to harvest our crops will come from. The recent hoopla over the immigration issues may be putting more worry into both employers and employees minds each day. I look at this as a healthy discussion that may hopefully lead to a successful reform of our federal policies on immigration.
Only through working together, and yes, with compromise (there’s that dirty word again) can we hope to advance policies that support those who produce our daily food supply. And that starts with the workforce that we are so dependent upon.
If we raise enough concern (read: ire) about the current status of workers in Agriculture (which we have done before without success), telling the potential impacts to our food security as a nation, we might pressure Congress into finally doing something aimed at documenting those who tend our fields and live in our communities. Only through loud enough voices can we continue to seek a solution to a problem created nearly 30 years ago by the unfinished policies of IRCA. We have failed through the diplomatic, democratic process of working with our elected leaders to find a solution that works. It’s now time for the people’s voices to be heard loud and clear: solve our immigration policies once and for ALL.
I’ve been part of a national coalition that has worked for over 15 years on a comprehensive immigration solution. We came close two times only to be defeated by irrational rhetoric about citizens losing jobs to foreign workers. No matter how much we document the lack of citizen workers taking available jobs in our fields, Congress continues to rationalize their attitudes by hanging their opinions on this flimsy argument.
We need to raise our voices of discontent in one unanimous cry to say we need an agricultural temporary worker program that works for California, doesn’t cost too much and is not bureaucratic in practice or application. We also need to find a way to provide documentation to those who have worked in our fields for years, are now part of our community, and solve the failure of the IRCA policies of three decades ago.
So, looking at the positives that we have in our community, there is really a lot to celebrate. We produce the safest, healthiest, safest food supply in the world here in the Salinas Valley (and indeed in the rest of our state and nation). It’s time we realize we have a great system of food production in our country and support those whose hands harvest the crops for our dinner tables each day.
As a community, we are making great progress on resource management issues, including groundwater quality and quantity. The farming community has rallied with other stakeholders to make this happen. We cannot sell ourselves short on these accomplishments, which in my view, are a great step toward redefining how we manage our community for all our residents.
Inspiration to do better is what we need, not the avalanche of daily political rhetoric and those who criticize every soundbite. We need to remember that our voices can and should be heard, and that our local economy depends on a viable workforce that doesn’t live in the shadows of political posturing.
MCFB continues to be a member of a national coalition of Ag employers and organizations working to secure meaningful, comprehensive immigration reform policy in Washington, D.C.
U.S. Citizenship and Immigration Services on May 19, 2015 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 (i.e., knew or should have known) that the employee presenting it is not employment authorized (if that is in fact the case).
- In addition, the guidance notes that:
- An employer accepting such a license as a List B identity document in the Form I-9 process must (as for all types of List B documents) also examine a List C document establishing the individual’s employment authorization.
- Under a regulation of the Department of Homeland Security, which houses USCIS, whether an employer is considered to have actual or constructive knowledge that an employee lacks employment authorization is determined on a case-by-case basis and depends upon all of the facts and variables specific to the individual case.
The last point above is made in the context of the federal ban against employing or continuing to employ an employee with knowledge that the employee is not eligible to be employed in the U.S. The DHS regulation noted above states that a “knowing hire” violation can include, in addition to actual knowledge of unlawful status, constructive knowledge that may be fairly inferred through notice of certain facts and circumstances, which would lead an employer through the exercise of reasonable care, to know about a certain condition. The omission from the guidance of any statement that an employer must do anything other than accept such a license as a List B identity document in the Form I-9 process indicates the federal government does not expect an employer to inquire into why an employee claiming employment eligibility has such a license—at least where the employer has no other reason to doubt the employee’s claim.
This conclusion should provide some sense of relief to employers in California who face legal liability for discriminating against a person because the person holds or presents an “AB 60 driver’s license,” so called because of the 2013 California Assembly bill that authorized the issuance of this type of driver’s license. A “clean up” bill enacted in 2014—AB 1660—declared that type of discrimination to be a violation of the Fair Employment and Housing Act.
The USCIS guidance, in the form of seven “frequently asked questions,” was posted in response to questions posed in a February 6, 2015, letter sent by California Farm Bureau Federation Associate Counsel Carl Borden to Deputy Secretary of Homeland Security Alejandro Mayorkas. That letter was submitted to DHS on behalf of California Farm Bureau Federation, California Fresh Fruit Association, Grower-Shipper Association of Central California, Grower-Shipper Association of Santa Barbara and San Luis Obispo Counties, Ventura County Agricultural Association and Western Growers.
The May 19, 2015 reply letter from USCIS Director León Rodriguez noted that the front of an AB 60 license bears the phrase “Federal Limits Apply,” and the back of the license states it “is not acceptable for official federal purposes.” The reply letter stated that Form I-9 use is not one of those official federal purposes; thus an AB 60 driver’s license may be used in the Form I-9 process. The reply letter continued by stating that Mr. Borden’s letter prompted USCIS, “in close cooperation with U.S. Immigration and Customs Enforcement,” to review, revise and augment its online guidance regarding the federal Real ID Act of 2005, which sets standards for state-issued driver’s licenses, and driver’s licenses used in the Form I-9 process.