Mandatory E-Verify, Farm Labor Bills Clear First Hurdle

Roy Maurer By Roy Maurer October 26, 2017
Mandatory E-Verify, Farm Labor Bills Clear First Hurdle

Proposals that would require the use of E-Verify by all employers within two years of enactment and create a new agricultural guest worker visa program were approved by the House Judiciary Committee Oct. 25.

The Legal Workforce Act mandates that employers across the country use E-Verify, the federal government's electronic system to verify new hires' work authorization. Employers in certain states and federal contractors already must use E-Verify, but for most employers use of the program is voluntary.

[SHRM members-only toolkit: Complying with I-9 and E-Verify Requirements]

"One way to make sure we discourage illegal immigration in the future is to prevent unlawful immigrants from getting jobs in the U.S.," said Committee Chairman Bob Goodlatte, R-Va. "Requiring the use of E-Verify by all employers across the country will help do just that. The Web-based program is a reliable and fast way for employers to electronically check the work eligibility of newly hired employees."

Operated by U.S. Citizenship and Immigration Services (USCIS), E-Verify checks the Social Security numbers of newly hired employees against government records. The program has a record of confirming 99.8 percent of work-eligible employees and has earned high customer satisfaction scores on the agency's annual surveys, according to USCIS. Over 740,000 employers currently use it.

The bill phases in E-Verify use in six-month increments beginning with the largest U.S. businesses, repeals the current paper-based I-9 system, pre-empts state laws mandating E-Verify use, raises penalties for employers who do not use E-Verify according to the requirements, and provides meaningful safe harbors for employers who use the system in good faith.

It also shortens the timeframe for which agriculture employers are required to phase in use of mandatory E-Verify from 30 to 18 months to align with the Agricultural Guestworker Act that passed out of the committee the same day (see below).

It also requires the Department of Homeland Security (DHS) to conduct at least two pilot programs to help prevent identity theft and allows workers to lock their Social Security numbers so that the number can't be used by another person to get a job. At the discretion of DHS, photo technology would be updated with alternative technology options, including facial recognition technology, to improve identity verification.

The Society for Human Resource Management (SHRM) supports the bill and, specifically, the inclusion of the identity authentication pilot programs. "Employers need a reliable and accurate tool to safeguard against identity theft," said Chatrane Birbal, a senior government relations advisor at SHRM.

According to SHRM's research, HR professionals expressed strong support for a mandatory electronic verification system. "Support was even stronger—an average 92 percent—for a system with improvements, including avoiding allegations of employment-based discrimination, creating a strong safe harbor to protect employers, eliminating the paper Form I-9, and authenticating the identity of job applicants," Birbal said.

New Farmworker Visa Program Proposed

A companion bill, the Agricultural Guestworker Act, would replace the current H-2A foreign farm labor program with an expansive, market-based H-2C visa program contingent upon passage of the mandatory E-Verify law.

"For far too long, the broken H-2A guest worker program has buried American farmers in red tape and excessive costs without delivering access to a stable and reliable workforce," Goodlatte said. "It's clear that the current program is outdated and broken for American farmers, and it's well past the time to replace it with a reliable, efficient, and fair program that provides American farmers access to a legal, stable supply of workers, both in the short- and long-term, for seasonal as well as year-round work." 
The proposal would create a market-driven program that begins with a cap of 450,000 visas per year, but could be enlarged indefinitely from there. It would allow workers to be employed at will, making it easier for them to move freely among employers to meet demand, and would also adopt an attestation-based petition process for employers rather than having them submit to a labor certification process, which depends on government approval. It expands the definition of agriculture work from seasonal occupations to include year-round operations such as dairy, logging and food processing.

The bill would also eliminate current H-2A program requirements stating that:

  • U.S. workers be shown preference for jobs even after foreign guest workers have started work.
  • Free housing and transportation be provided to workers.
  • Foreign guest workers be paid above the state minimum wage.

The current program requires employers to pay an artificially inflated wage rate, Goodlatte said. "These growers must pay an average of over $13 an hour in some states and still cannot find enough Americans willing to take the jobs. Further, they must provide free housing and daily transportation. H-2A farms almost always find themselves at a competitive disadvantage in the marketplace."

Goodlatte's proposal faced opposition from both Democrats and from immigration restrictionists on the Republican side. Two Republicans voted against the bill, and five others declined to vote, signaling that it will have a difficult time going forward.

Democrats argued that the legislation would "bring in an army of guest workers" to undercut U.S. workers across various sectors of the economy, convince employers to hire cheap foreign labor, encourage further illegal immigration, and eliminate labor protections workers currently have.

The bill's provisions decreasing current average pay were especially criticized, as were the provisions allowing employers to deduct costs such as visa and recruitment fees, housing and transportation from workers' wages.

"Workers under this bill will effectively be paid far below the federal minimum wage," said John Conyers, D-Mich., and the ranking member on the committee. "My colleagues on the other side of the aisle often speak of the need to protect U.S. workers from immigrants. So I am surprised to see them now offer a bill that appears to make their nightmare scenario come true—creating an incentive to replace well-paid U.S. workers with temporary foreign workers at a drastically lower cost," he said, referring to the expansion of agricultural guest workers into forestry and meat and poultry processing, sectors which tend to pay higher wages and employ more U.S. workers.

The committee adopted an amendment before passage adding a prevailing wage requirement for meat and poultry processing jobs.

Farm Industry Offers Muted Support

Agriculture employers are cautiously supportive, but they have big reservations. An amendment requiring undocumented farmworkers currently in the U.S. to return to their home countries before applying for an H-2C visa will be problematic, said Frank Gasperini, president and CEO of the National Council of Agricultural Employers based in Washington, D.C. He said the industry can't afford to lose those workers.

Western Growers President and CEO Tom Nassif called the bill as amended "unworkable, particularly when coupled with expedited mandatory E-Verify."

The American Farm Bureau Federation voiced its support for the bill, saying that it would bring much-needed improvements to the current system and provide a streamlined visa process.

National Milk Producers Federation President and CEO Jim Mulhern called the proposal "a significant step forward in providing positive, workable solutions for dairy farm employers. It recognizes that we need to move past the status quo and pursue a new approach to matching the supply and demand for workers in U.S. agriculture." 

The United Farm Workers labor union supports the Agricultural Worker Protection Act introduced by Sen. Dianne Feinstein, D-Calif., and Rep. Luis Gutierrez, D-Ill., which would legalize guest workers who have worked on U.S. farms for at least 100 days over two years. A three- to five-year path to citizenship would be available to those who continue to work in agriculture.

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