Proactive employers should make sure that internal processes are already in place to comply with I-9 employment verification rules and fair and equitable hiring practices. If the worksite enforcement record of the Obama administration is any indication, even if CIR does not become law, small and large businesses can only expect more oversight and enforcement activity from the US Immigration and Customs Enforcement (ICE). Employers, for example, should make sure human resources personnel are properly trained on I-9 compliance and that all employees know what to do in the event of an ICE audit or worksite raid.

 

While the details of comprehensive immigration reform (CIR) are likely to change, according to pending legislation, the initial application period for registered provisional immigrants (RPI) will be one year from the date on which the final program rule is published in the Federal Register, and it may be extended for 18 months. A filing and penalty fine of $1,000 is currently in place, though a filing fee and penalty fine will definitely be included in the program. RPI status is initially valid for six years.

W visas apply to non-agricultural workers entering to perform temporary work for a registered non-agricultural small business employer. It is similar to the H-2B non-agricultural temporary worker program, except that the initial admission period is three years, and may be renewed for an additional three years, so long as the government has certified the worker as eligible for a W visa. To qualify for a W visa under the proposed CIR law, the employer must meet prevailing wage and recruitment requirements, and the area in which the job is located cannot be in a high unemployment area (8.5 percent or higher) unless the job is in a shortage occupation.

Immigration advocates continue to push for passage of the U.S. Senate's controversial Comprehensive Immigration Reform (CIR) bill, S.B. 744. This article, prepared for LC/DBM by recent leaders of the American Immigration Lawyers Association, Oregon state chapter, summarizes key segments of the CIR bill that would directly affect landscaping and nursery businesses and their employees.

W-2/3 Visas For Agricultural Workers – The Blue Card
Certain individuals who can document a specific amount of qualifying agricultural work during the two-year period ending December 31, 2012, may apply for the so-called "Blue Card," as can their spouses and minor children, so long as they were physically present on December 31, 2012. Persons outside the U.S. who have previously been H-2A temporary agricultural workers may also apply.

The application period is one year from the date the final rule first appears in the Federal Register and may be extended for 18 months. The penalty fee at present is set at $100, which is substantially lower than the RPI penalty of $1,000, but will be subject to change. Those in removal proceedings or with final orders may apply for the Blue Card. The period of Blue Card status is limited to eight years, extensions are not permitted, and Blue Card holders are subject to the same travel, tax filing, and benefit eligibility limitations as RPIs.

Non-Immigrant Visas
S.B. 744 also creates new W-2 and W-3 non-immigrant visas for agricultural workers entering into contract based or at-will employment with a Designated Agricultural Employer (DAE) – a designation for which the employer must register – for an initial period of three years with one three-year renewal. The spouses and minor children of the worker will not receive any kind of immigration benefits as dependents under this program, which will replace the current H-2A temporary agricultural worker visa. For the initial five years of the program, these visas will be limited to 112,333 per annum unless a severe labor shortage is declared.

There are a number of detailed provisions relating to contract and employment requirements and worker protections, and the program has very specific timing and recruitment provisions. These provisions may change, but will almost certainly include a recruitment requirement and worker protection provisions.

Employment Verification And Employer Liability
S.B. 744 maintains and strengthens existing prohibitions against hiring unauthorized foreign workers and expands them to persons who recruit or refer these individuals. The bill provides worker protections and an affirmative defense for employers who complied with existing document verification and E-Verify systems in good faith. The bill also establishes a five-year schedule for bringing every U.S. employer into the E-Verify electronic employment verification system. The compliance provisions are extremely detailed and may change, but the requirement to bring every employer into the system will most certainly remain, as will the obligation not to discriminate and provide worker protections.

While the effects of CIR on the landscape and nursery industries remain uncertain, in the meantime, immigration attorneys can guide and assist employers and employees in navigating the complex immigration and employment verification rules to help fend off potential liabilities.

Gretel Ness and Dagmar Butte are immigration attorneys at Parker Butte & Lane. The firm provides complete and personalized immigration services for its corporate, individual and nonprofit clients. As part of their work, they advise clients on I-9, E-Verify and all aspects of employment authorization verification compliance. For more information, visit pbl.net.