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E-Verify & E-Verify & Immigration ReformImmigration Reform

Presented to the FCM Board of DirectorsPresented to the FCM Board of DirectorsBy Mike SparksBy Mike Sparks

October 18, 2011October 18, 2011

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Florida Citrus Mutual’s Existing Florida Citrus Mutual’s Existing Position on LaborPosition on Labor

““Ensure Florida citrus growers have a legal, Ensure Florida citrus growers have a legal, reliable workforce.”reliable workforce.”– H-2A Program available but improvments neededH-2A Program available but improvments needed– Existing I-9 Program utilizes “Alternative Labor”Existing I-9 Program utilizes “Alternative Labor”

A mandatory E-Verify Program would A mandatory E-Verify Program would eliminate the existing I-9 Program and wouldeliminate the existing I-9 Program and would

challenge Florida agriculture and challenge Florida agriculture and

Florida citrus industry. Florida citrus industry.

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FCM Resources to Address the FCM Resources to Address the Labor/E-Verfiy/Immigration Labor/E-Verfiy/Immigration

ReformReform FCM StaffFCM Staff

– Mike SparksMike Sparks– Casey WelchCasey Welch– Melanie BurnsMelanie Burns– Andrew MeadowsAndrew Meadows– Drew LoveDrew Love

Florida PartnersFlorida Partners– FDACSFDACS

FCMFCM FFBFFFBF FFVAFFVA FNGLAFNGLA

– Governor Rick ScottGovernor Rick Scott– Florida Chamber of Florida Chamber of

CommerceCommerce Immigration CoalitionImmigration Coalition

Federal CoalitionsFederal Coalitions– NCAE (National Coalition NCAE (National Coalition

of Agricultural Employers)of Agricultural Employers)– ACIR (Agricultural ACIR (Agricultural

Coalition for Immigration Coalition for Immigration Reform)Reform)

– USA FarmersUSA Farmers

Washington, D.C.Washington, D.C.– Akin GumpAkin Gump– Rep. Dennis RossRep. Dennis Ross– Sen. Bill NelsonSen. Bill Nelson

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E-Verify & Immigration E-Verify & Immigration Reform – H-2A ProgramReform – H-2A Program

What is H-2AWhat is H-2A– The H-2A temporary agricultural program establishes a means The H-2A temporary agricultural program establishes a means

for agricultural employers who anticipate a shortage of for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary U.S. to perform agricultural labor or services of a temporary nature. nature.

According to the State of Florida, Department of Economic According to the State of Florida, Department of Economic Opportunity there has been a 20% increase in H-2A Opportunity there has been a 20% increase in H-2A applications for the 2011-12 seasonapplications for the 2011-12 season– Existing users asking for additional workersExisting users asking for additional workers– New H-2A users starting this yearNew H-2A users starting this year– The reason for an increase in usage this season has been due to The reason for an increase in usage this season has been due to

the lack of labor last year, which was in part, due to the scare of the lack of labor last year, which was in part, due to the scare of mandatory E-Verify.mandatory E-Verify.

FCM estimates 30% of Florida’s citrus harvesting is FCM estimates 30% of Florida’s citrus harvesting is performed by H-2A workers. performed by H-2A workers.

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The Existing H-2A Program The Existing H-2A Program is Not Perfectis Not Perfect

Meeting Growers’ Needs:Meeting Growers’ Needs:– 47% of employers were “not at all satisfied” or 47% of employers were “not at all satisfied” or

only “slightly satisfied” with the H-2A Program. only “slightly satisfied” with the H-2A Program. – Growers who do not plan to use the program in Growers who do not plan to use the program in

2012 (42%) will not participate because it is 2012 (42%) will not participate because it is “too administratively burdensome or costly”“too administratively burdensome or costly”

Costly Program to UtilizeCostly Program to Utilize– Employers of the H-2A Program must pay the Employers of the H-2A Program must pay the

highest of the following:highest of the following: Federal Minimum Wage - $7.25Federal Minimum Wage - $7.25 Florida Minimum Wage - $7.31 as of JuneFlorida Minimum Wage - $7.31 as of June AEWR – Adverse Effect Wage Rate - $9.50 for FloridaAEWR – Adverse Effect Wage Rate - $9.50 for Florida

Source: NCAE 2010 Survey

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The Existing H-2A Program The Existing H-2A Program is Not Perfectis Not Perfect

Timeliness of Receiving WorkersTimeliness of Receiving Workers– Denials of H-2A applications have increased dramaticallyDenials of H-2A applications have increased dramatically– Excessive deficiency notices and requests for evidence Excessive deficiency notices and requests for evidence

cause serious delays – even though 58% of these cause serious delays – even though 58% of these deficiencies are small errors and inconsistencies in the deficiencies are small errors and inconsistencies in the application.application.

– 72% of growers reported that workers arrived after the 72% of growers reported that workers arrived after the “date of need,” on average 22 days late. “date of need,” on average 22 days late.

The number of appeals of denials has reached The number of appeals of denials has reached historic levelshistoric levels– 2009 – under 100 appeals2009 – under 100 appeals– 2011 – between 400 and 500 appeals to date (with 2011 – between 400 and 500 appeals to date (with

majority of these being overturned)majority of these being overturned)

Source: NCAE 2010 Survey

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The Existing H-2A Program The Existing H-2A Program is Not Perfectis Not Perfect

U.S. Workers will not accept ag jobsU.S. Workers will not accept ag jobs– United States Dept. of Economic Opportunity referred United States Dept. of Economic Opportunity referred

36,000 domestic workers to H-2A employers36,000 domestic workers to H-2A employers Only 5% worked through the contract periodOnly 5% worked through the contract period 68% did not accept a job68% did not accept a job 20% began work but did not finish the contract20% began work but did not finish the contract 7% accepted job but did not begin work7% accepted job but did not begin work

Increased Wage & Hour investigationsIncreased Wage & Hour investigations– 8% of employers report they were audited before they 8% of employers report they were audited before they

participated in the H-2A Programparticipated in the H-2A Program– 35% report being audited since entering the Program35% report being audited since entering the Program

Source: NCAE 2010 Survey

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FCM’s Ability to Influence the FCM’s Ability to Influence the Existing H-2A ProgramExisting H-2A Program

Program ElementsProgram Elements– Change AEWR ($9.50/hr) to prevailing rateChange AEWR ($9.50/hr) to prevailing rate– Class action lawsuitsClass action lawsuits– Little or no chance to influence the current Administration, Program Little or no chance to influence the current Administration, Program

elements must have a legislative fixelements must have a legislative fix

Administrative ElementsAdministrative Elements– Recruiting timeRecruiting time– Application reviewApplication review– Application denialsApplication denials– Leverage our relationships with:Leverage our relationships with:

Rep. Dennis Ross (R-FL)Rep. Dennis Ross (R-FL) Sen. Bill Nelson (D-FL)Sen. Bill Nelson (D-FL)

Hold an H-2A Summit in Washington D.C.Hold an H-2A Summit in Washington D.C. Adm. Dr. William Carlson, DOLAdm. Dr. William Carlson, DOL

Identify an FCM Staffer to assist in member applicationsIdentify an FCM Staffer to assist in member applications

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Immigration/Labor ReformImmigration/Labor Reform

Improvements to the H-2A Program Improvements to the H-2A Program neededneeded

Federal LegislationFederal Legislation– E-Verify and new worker program legislation E-Verify and new worker program legislation

is a “Mixed Bag”is a “Mixed Bag”

State LegislationState Legislation– Individual State approaches to solve the Individual State approaches to solve the

Federal issue is not the answer Federal issue is not the answer

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What is E-VerifyWhat is E-Verify E-Verify is a free Internet-based system operated E-Verify is a free Internet-based system operated

by the Dept. of Homeland Security in partnership by the Dept. of Homeland Security in partnership with the Social Security Administration that allows with the Social Security Administration that allows participating employers to electronically verify participating employers to electronically verify the employment authorization of their newly the employment authorization of their newly hired employees through the employee’s social hired employees through the employee’s social security number.security number.

E-Verify does not replace the legal requirement to E-Verify does not replace the legal requirement to complete and retain Form I-9, Employment complete and retain Form I-9, Employment Eligibility Verification. E-Verify verifies the Eligibility Verification. E-Verify verifies the employment authorizaiton of new hires based on employment authorizaiton of new hires based on the information provided on Form I-9. the information provided on Form I-9.

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E-Verify is Misunderstood by E-Verify is Misunderstood by the Public the Public

The The Legal Workforce Act Legal Workforce Act could open up millions of could open up millions of jobs for unemployed Americans by requiring all jobs for unemployed Americans by requiring all U.S. workers to use E-Verify.U.S. workers to use E-Verify.

Right now it takes an un-employed U.S. worker Right now it takes an un-employed U.S. worker about nine months to find a job. E-Verify can about nine months to find a job. E-Verify can open up a job in two minutes.open up a job in two minutes.

Critics of E-Verify oppose implementation of the Critics of E-Verify oppose implementation of the system for one-reason – it works. Opponents are system for one-reason – it works. Opponents are putting the interests of illegal workers ahead of putting the interests of illegal workers ahead of U.S. workers.U.S. workers.

Sources: Rep. Lamar Smith (R-TX), Chairman of the House Judiciary Committee; Numerous News Reports

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Federal LegislationFederal Legislation

Mandatory E-Verify Mandatory E-Verify Bills:Bills:– H.R. 2165, the H.R. 2165, the Legal Legal

Workforce Act – Workforce Act – passed passed by the House Judiciary by the House Judiciary CommitteeCommittee

– S. 1196, the S. 1196, the Accountability Through Accountability Through Electronic Verficiation Electronic Verficiation ActAct

No H-2A improvementsNo H-2A improvements No Ag Exemptions nor No Ag Exemptions nor

phase-inphase-in

H-2A Reform Bills:H-2A Reform Bills:– H.R. 2847, the H.R. 2847, the America America

Specialty Agriculture Specialty Agriculture ActAct

– H.R. 2895, the H.R. 2895, the Legal Legal Agricultural Workforce Agricultural Workforce ActAct

– S. 1384, the S. 1384, the ‘Harvest ‘Harvest Act’ Helping Agriculture Act’ Helping Agriculture Receive Verifiable Receive Verifiable Employees Securely Employees Securely and Temporarily Act of and Temporarily Act of 20112011

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Federal LegislationFederal Legislation H.R. 2164, the H.R. 2164, the Legal Workforce ActLegal Workforce Act

– On June 14, 2011, House Judiciary Committee On June 14, 2011, House Judiciary Committee Chairman, Lamar Smith (R-TX), introduced H.R. Chairman, Lamar Smith (R-TX), introduced H.R. 2164, the 2164, the Legal Workforce Act. Legal Workforce Act. It includes It includes mandatory E-Verify legislation.mandatory E-Verify legislation.

– The bill had sixty-two co-sponsors.The bill had sixty-two co-sponsors.– A mark-up was held, the Berman Amendment A mark-up was held, the Berman Amendment

passed which struck any agriculture-friendly passed which struck any agriculture-friendly language.language. No three-year phase-inNo three-year phase-in No new Ag Worker ProgramNo new Ag Worker Program No improvements to H-2ANo improvements to H-2A

– No timetable as to when the full House will consider.No timetable as to when the full House will consider.

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Federal Legislation: Federal Legislation: H-2A Reform BillsH-2A Reform Bills

HR 2847 – the HR 2847 – the American American Specialty Agriculture ActSpecialty Agriculture Act– Rep. Lamar Smith (R-TX)Rep. Lamar Smith (R-TX)– Replace H-2A ProgramReplace H-2A Program– Capped at 500,000Capped at 500,000– Pay prevailing wage rate not Pay prevailing wage rate not

AEWRAEWR– Housing voucherHousing voucher– More difficult for legal aid to More difficult for legal aid to

suesue– USA Farmers & exisiting H-2A USA Farmers & exisiting H-2A

participants “somewhat participants “somewhat supportive”supportive”

HR 2895 – the HR 2895 – the Legal Legal Agricultural Workforce ActAgricultural Workforce Act– Rep. Dan Lungren (R-CA)Rep. Dan Lungren (R-CA)– Worker portabilityWorker portability– Eliminates H-2AEliminates H-2A– New program administered by New program administered by

USDAUSDA– Workers admitted to US to Workers admitted to US to

work 10 months onlywork 10 months only– American Farm Bureau, ACIR American Farm Bureau, ACIR

appear to be “somewhat appear to be “somewhat supportive”supportive”

HR 2164 generated grave concerns from small businesses and tourism, but most importantly from UNITED STATES AGRICULTURE. Most agree agriculture’s needs must be addressed.

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Federal Legislation: Federal Legislation: SenateSenate

No Committee actions by the SenateNo Committee actions by the Senate

US Sen. Chambliss (R-GA) has proposed SB 1384 US Sen. Chambliss (R-GA) has proposed SB 1384 Harvest ActHarvest Act– Would remedy long-standing problems with the H-2A ProgramWould remedy long-standing problems with the H-2A Program– Provides a waiver to allow those illegally present in the U.S. to Provides a waiver to allow those illegally present in the U.S. to

participate in the H-2A Programparticipate in the H-2A Program– Participants not eligible for citizenshipParticipants not eligible for citizenship– Bill has no co-sponsorsBill has no co-sponsors

US Sen. Feinstein (D-CA) indicated that she will introduce a US Sen. Feinstein (D-CA) indicated that she will introduce a version of her “Emergency Act” that would provide for a five-version of her “Emergency Act” that would provide for a five-year pilot program for current workers and H-2A reforms. This year pilot program for current workers and H-2A reforms. This Act would:Act would:– Grant temporary, limited immigration status for experienced farm Grant temporary, limited immigration status for experienced farm

workers who would be required to continue to work in US workers who would be required to continue to work in US agriculture for the next five years;agriculture for the next five years;

– Reforms and streamlines the H-2A program;Reforms and streamlines the H-2A program;– Temporary Emergency Agricultural program capped at 1.35 million Temporary Emergency Agricultural program capped at 1.35 million

workers;workers;– Freezes wages at the 2007 level for three years while a new fair Freezes wages at the 2007 level for three years while a new fair

wage standard is studied.wage standard is studied.

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Federal Legislation Summary:Federal Legislation Summary:“A Mixed Bag”“A Mixed Bag”

Mandatory E-Verification passed the Judiciary Committee Mandatory E-Verification passed the Judiciary Committee with NO agriculture exceptions on June 15, 2011 with NO agriculture exceptions on June 15, 2011

No timetable on when the full House will considerNo timetable on when the full House will consider

Much more work needed (an independent House bill to Much more work needed (an independent House bill to supplement HR 2162) to address agriculture’s needs and supplement HR 2162) to address agriculture’s needs and concernsconcerns

Senate not likely to accept the House language nor Senate not likely to accept the House language nor advance Senate bill this Congressadvance Senate bill this Congress

If a legislative bill passes House & Senate, the President If a legislative bill passes House & Senate, the President not likely to sign this yearnot likely to sign this year

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State Legislation: E-State Legislation: E-VerifyVerify

Last year, a bill sponsored by Rep. William Snyder, R-Stuart, Last year, a bill sponsored by Rep. William Snyder, R-Stuart, mandating E-Verify for all Florida employers passed in a House mandating E-Verify for all Florida employers passed in a House Committee during the 2011 session before a similar measure Committee during the 2011 session before a similar measure died in the Senate thanks in large part, to the efforts of Sen. JD died in the Senate thanks in large part, to the efforts of Sen. JD Alexander. Alexander.

This year, the E-Verify effort will return in the FL Legislature. This year, the E-Verify effort will return in the FL Legislature. Florida Citrus Mutual continues to work with Com. of Ag Adam Florida Citrus Mutual continues to work with Com. of Ag Adam Putnam and with other major agricultural organizations, Putnam and with other major agricultural organizations, including the Florida Farm Bureau and the Florida Fruit and including the Florida Farm Bureau and the Florida Fruit and Vegetable Assn., as well as the Florida Chamber of Commerce Vegetable Assn., as well as the Florida Chamber of Commerce and Associated Industries of Florida. and Associated Industries of Florida. – Florida Chamber – Immigration Committee has conducted focus Florida Chamber – Immigration Committee has conducted focus

group interviews on E-Verificationgroup interviews on E-Verification

Mutual has met with about a dozen Legislators during the Mutual has met with about a dozen Legislators during the summer, at times with Indian River Citrus League, to discuss summer, at times with Indian River Citrus League, to discuss agriculture’s unique labor needs. We have been received fairly agriculture’s unique labor needs. We have been received fairly well.well.

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State Legislation: E-State Legislation: E-VerifyVerify

It appears that there is not the appetite for FL legislative It appears that there is not the appetite for FL legislative leadership to pass a comprehensive E-Verification leadership to pass a comprehensive E-Verification program.program.

Recognizing there will be no federal fix to the immigration Recognizing there will be no federal fix to the immigration labor issue by the start of the 2012 State legislative labor issue by the start of the 2012 State legislative session, the State of Florida Mandated E-Verification session, the State of Florida Mandated E-Verification Program could be a legislative threat. Program could be a legislative threat. Although not Although not likely, the worst case scenario could include an E-likely, the worst case scenario could include an E-Verify Program effective July 1, 2012.Verify Program effective July 1, 2012.

Governor Rick Scott, October 12, at the FCM Crop Estimate Governor Rick Scott, October 12, at the FCM Crop Estimate Breakfast stated he would “sign no legislation that would Breakfast stated he would “sign no legislation that would hurt agriculture.”hurt agriculture.”

Next year, 2013, we can expect a “new wave” of legislation Next year, 2013, we can expect a “new wave” of legislation from newly elected legislators.from newly elected legislators.

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E-Verificaiton & Immigration E-Verificaiton & Immigration ReformsReforms

ConclusionConclusion Florida Citrus Mutual must stay engaged.Florida Citrus Mutual must stay engaged.

Utilize existing coalitions and partnerships.Utilize existing coalitions and partnerships.

Pursue a Federal Legislative Fix.Pursue a Federal Legislative Fix.

Work to Improve the H-2A Program.Work to Improve the H-2A Program.– Administrative IssuesAdministrative Issues– Program ImprovementProgram Improvement

Avoid a State of Florida remedy.Avoid a State of Florida remedy.