IMMIGRATION UPDATE FOR DAIRY PRODUCERS Anthony P. Raimondo, Esq. McCormick, Barstow, Sheppard, Wayte and Carruth LLP (559) 433-1300 anthony.raimondo@mccormickbarstow.com
Disclaimer The following presentation contains general information and is provided as a courtesy to our clients and friends. It should not be relied upon in any particular fact situation without consulting your legal counsel for specific advice. 2009 by McCormick, Barstow, Sheppard, Wayte & Carruth LLP
WHAT IN THE HECK IS GOING ON?
What changes have we seen? 2009 by McCormick, Barstow, Sheppard, Wayte & Carruth LLP
PROSECUTORIAL DISCRETION DACA Deferred Action for Childhood Arrivals NOT A CHANGE IN THE LAW! Simply a decision not to deport. Does not protect from removal. Are participants gambling with their future? The DREAM Act has failed in Congress. But can be granted employment eligibility for two years. DACA Eligibility Under 16 at the time of entry and no older than 31 now. Must be in school, graduated from high school or have served in the military and have no criminal record. 430,000 applications approved. Risks? Policy can change, and this is not a change in the law. Can be revoked at any time The latest request not to deport parents of minor children.
Obama Immigration Statistics - Spending The Obama administration spent more money on immigration enforcement in the last fiscal year than all other federal law enforcement agencies combined. $18 billion in FY 2012. $3.6 billion MORE than the combined budgets of the FBI, ATF, DEA and Secret Service by about $3.6 billion dollars. Since 1986, the federal government has spent approximately $187 billion on immigration enforcement
Obama Immigration Statistics - Enforcement In 2011, 327,000 arrests at the southern border, DHS also removed a then-record 396,906 immigrants in 2011. In 2012, nearly 410,000 people were removed from the United States.. Removing more undocumented immigrants, but Less arrests in the interior. Broad use of prosecutorial discretion not to remove, but... More enforcement spending.
Priorities Make it Add Up
Priorities Have Changed Over Time
Deportation Statistics 2009 by McCormick, Barstow, Sheppard, Wayte & Carruth LLP
Removals Ordered by Courts 2009 by McCormick, Barstow, Sheppard, Wayte & Carruth LLP
What Does it Mean? Arrest Patterns Less catch and release. Increased border apprehensions If you make it in, more likely that you are safe Less cooperation with local law enforcement Removal Patterns If you end up in immigration court, far more likely to be able to make a deal to stay. More administrative removals without a hearing. 2009 by McCormick, Barstow, Sheppard, Wayte & Carruth LLP
Enforcement Tools Workplace Raids Primary tool of the Bush administration. Results in disruption of business, and arrest/flight of workforce I-9 Audits Primary tool of the Obama Administration. Looks for paper violations. Employees may lose jobs, but rarely arrested. 503 audits in 2008. Over 8,000 in 2009. In 2007, ICE arrested 92 employers. 240 in 2012. In 2007, ICE issued 2 orders finding violations. 495 in 2012. BUT numbers were consistently higher from 1992 to 1998, including over 1000 orders in 1992.
IMMIGRATION COMPLIANCE PROTOCOL Be certain you have completed I-9 forms for all new hires, including U.S. citizens. Make sure that all staff who process new hires are trained to properly complete the I-9 process. Periodically audit I-9s to make sure they are properly processing new hires. Incomplete or improperly completed I-9 forms will result in exposure to liability! Complete the forms at the same point in the employment process for all employees - after you have made the decision to hire the person. Be certain you keep I-9 forms on file for three years after the date of hire or for one year after termination of employment, whichever date is later. 2009 by McCormick, Barstow, Sheppard, Wayte & Carruth LLP
Problems with Current System Guest worker programs limited For agriculture, H-2A is seasonal only with many headaches. Target for law enforcement and litigation. Lack of available legal workforce Reliable labor supply an increasing problem How do we maintain an existing, trained, experienced workforce? 2009 by McCormick, Barstow, Sheppard, Wayte & Carruth LLP
Proposals for a New System Identification and Border Security E-Verify likely to be mandatory. Many disputes about Border Security. Legalization/Amnesty/Path to Citizenship Biggest area of dispute Blue card proposal Taxes and penalties back of the line for citizenship How do we send them home? Expanded Guest Worker Multiple industries eye to technology and agriculture. Guest worker programs unlikely to be easy for agriculture. 2009 by McCormick, Barstow, Sheppard, Wayte & Carruth LLP
New I-9 Form Issued Dated 3/8/13 expires 3/31/2016 Forms dated 02/02/09 and 08/07/09 will be accepted until May 7, 2013. After May 7, 2013, only the 03/08/13 will be accepted. Section 1 is now its own page. Emphasis on completion prior to the first day of work. New M-274 issued as well Instructions clarify a number of issues, such as reverification of expired PRA cards. 2009 by McCormick, Barstow, Sheppard, Wayte & Carruth LLP
IMMIGRATION COMPLIANCE PROTOCOL Be certain you have completed I-9 forms for all new hires, including U.S. citizens. Make sure that all staff who process new hires are trained to properly complete the I-9 process. Periodically audit I-9s to make sure they are properly processing new hires. Incomplete or improperly completed I-9 forms will result in exposure to liability! Complete the forms at the same point in the employment process for all employees - after you have made the decision to hire the person. Be certain you keep I-9 forms on file for three years after the date of hire or for one year after termination of employment, whichever date is later. 2009 by McCormick, Barstow, Sheppard, Wayte & Carruth LLP
IMMIGRATION COMPLIANCE PROTOCOL Have a knowledgeable designated representative in place who is authorized to meet and talk with ICE personnel. Make sure that the representative knows when to contact the company s attorneys and owner(s). Educate your employees to refer ICE or other government inquiries to your designated company representative. All employees must be trained to inform ICE agents that the Company has a standard protocol implemented by legal counsel, and that the agents need to wait for the designated person to follow through on that protocol. 2009 by McCormick, Barstow, Sheppard, Wayte & Carruth LLP
What comes next? Nobody Knows.
We need an answer. 2009 NMPF survey: 62% of the nation s milk supply is produced by immigrant labor. Eliminating immigrant labor would reduce the United States dairy herd by 1.34 million head, milk production would decline by 29.5 billion pounds and 4,532 dairy farms would go out of business. Retail milk prices would increase by an estimated 61%.