The thorny issue of immigration reform may get pricklier before it gets better, and Congress may have a narrow window of opportunity to make meaningful changes in a system that has not worked well for years before the cycle of national elections makes passing any contentious issue even more difficult.
In the meantime, the produce industry, a labor intensive business, depends on immigrant labor for much of its harvesting, packing and processing chores and finding a reliable pool of legal immigrant workers is increasingly difficult.
Frank Gasperini, with the National Council of Ag Employers; Dan Brown, an attorney with Berry Appleman and Leiden LLP; and U.S. Representative Henry Cuellar, D-Texas, discussed current immigration issues and potential for reform during the Texas Produce Convention in Austin.
Gasperini said from an employer's perspective, immigration reform is a critical issue to provide enough legal workers to keep U.S. companies competitive and keep jobs from moving offshore. But reform will not be easy.
“The country is polarized by the far right and the far left,” he said. “It's hard to get it toned down. For the last eight or 10 years in Congress it's been a case of do it all or do nothing. It's a difficult time to get things done in Washington.”
He said a temporary guest worker program, H2A, currently provides less than 5 percent of all agricultural workers in the United States. “The estimate that three-fourths or more are not documented legally is probably true. It's difficult to supply enough legal employees for agriculture.”
He said the Bush administration made some changes in H2A near the end of the term, but many of those changes have been under pressure by the Obama administration, including wages that are $2 higher than prevailing rates.
Employers got an injunction to stop suspension of previous H2A rules, he said, and the Department of Labor will begin working on new regulations. He said new rules could be announced in the fall or winter. “We'll probably see a new proposal for H2A, but we're probably not going to like it.”
He said regulations have been too broad. “I hope to see more specific rules that leave less agency latitude. With vague legislation, we get changes with any new administration.”
He said an ag jobs bill “is a long shot to pass this year.” He expects Congress will push next year for a comprehensive immigration bill that may include ag jobs.
“The issue becomes a lightning rod. Legislators will not support it publicly, fearing a backlash from voters. The House is more urban now.”
Representative Cuellar said the agricultural industry needs immigration reform to offset “a labor shortage in certain areas. Agriculture, especially, needs a guest worker plan that works. We want strong border security and a guest worker plan. We also have from 11 million to 12 million illegal aliens in the United States.”
He said dealing with that many illegals “is the hardest part” of immigration reform. “It will take a lot of help. We have to look at the realities and what works and what doesn't.”
Cuellar said the last immigration reform came during the Reagan administration. “It gets emotional,” he said. “But we have to get something that makes sense. Intent is to do it this year but other things have gotten in the way.”
Timing is critical, he said. “If we get too far into next year, the election will be a factor. Then next winter we'll be into 2011 and looking at the 2012 presidential campaigns.”
Brown said enforcing current immigration laws will “get reform moving in Congress,” and said legislation likely will focus on employers rather than on individual workers. He said President Bush had “virtually no I-9 (Employment Eligibility Verification Form) inspections or fines, especially in his early years.
That is changing an with announcement in July of 652 notices of inspections. “Even more enforcement is to come. The biggest issue is to have the I-9 compliance policy in place.”
He said fines have increased and range from $300 to $3,200 per illegal worker for the first violation. Improper paperwork could result in fines from $110 to $1,100 per worker. “Fines can add up,” Brown said.
He said some agricultural employers likely will be included in the list of inspection sites. “Companies that receive an I-9 inspection notice should take it seriously. Employers must get procedures in place and follow them properly. Provide proper training. A lot of errors can be avoided with training.”
He also recommended that companies do their own audits and said electronic I-9 programs may eliminate some errors.
Brown said “no match letters,” in cases where an employee's Social Security number doesn't match tax records, may be used to identify a possible illegal immigrant. The rule was recently repealed and final regulations for a new program have not been issued.
“For now, go back to the guidelines for 2006 and earlier,” Brown said. “If companies get ‘no match' letters, they shouldn't ignore them. They may need guidance from Homeland Security and they may need to terminate employees.”
Gasperini said in a question-and-answer session that the industry is not certain how the Obama administration will proceed on immigration reform. He said some “very conservative congressmen will label California Sen. Diane Feinstein's proposal as amnesty.
He said California wants an amnesty program, but that Texas needs a day crossing program. “It's a difficult issue, but there will be a lot (of advantages) for Texas in an ag jobs bill.”
He said H2A is “broke and not fixable as is.”
Gasperini said health care also will “be a huge employer issue. Employer mandates are possible and may include H2A and other guest workers.”
He said health care for seasonal workers would be difficult to manage with employees moving from farm to farm and across state lines as seasons change.
“The (legislative process) has slowed down,” he said. “But something will pass and will be worked on and added to over the years. It's better to be a part of the process and help slow it down and work on the issues.”
He said long-term, employer mandates likely will be part of the health care program. “Temporary workers will be an issue. Our goal is to keep a system where we can remain competitive.”
Cuellar said two goals stand out for health care reform: helping people with insurance reduce costs and helping people without insurance to get coverage.
A member of the Blue Dog Democrats, Cuellar recommends holding off to study the options. But he pointed out the need to do something.
“Insurance premiums have gone up over the last 10 years — 104 percent in Texas since 2001. Co-pays also are up.”
He said he wanted neither an insurance bureaucrat nor a government bureaucrat making medical decisions that should be made by individuals.
Texas ranks No. 1 in the nation in the number of children without health insurance. “One in four Texans has no coverage.”
A public option (government supported) or a co-op plan both “have strong arguments. A balance is needed,” he said, to keep insurance companies competitive.
He said health care would be one of the most important issues Congress has faced in the last 40 years. The goal is to make insurance coverage available to all Americans. The trick is “how we get there.”
The working middle class could be the most vulnerable in the system. “Some are penalized for having a job. We also want to focus on small businesses. Ten years ago, 68 percent of small businesses had insurance coverage; today it's 32 percent because premiums have gone up. How do we help the working class?
“We have to be careful of what role government plays,” Cuellar said.
Gasperini said employers need to develop strategies for managing pandemics, such as the H1N1 flu. “Employees will be frightened by the media and may not show up for work. The issue also could be real with deaths possible. Employers need a plan to deal with it. The industry will face the issue this winter.”