With Congress stalemated on immigration legislation and little reason to expect a good legislative window before 2017, all eyes are on the President. He and his spokespeople have said that he intends to do what he can, “within the law,” to improve the situation. Various industries are engaging in various ways, and many legal experts believe he could do quite a few things, each with its own attendant risks and benefits.
The green industry, and especially our growers, has a lot riding on immigration reform. After all, a majority of the labor force is believed to have papers that wouldn’t stand up to a forensic investigation. But they’re the only ones applying for the work. The existing visa program, H-2A, is an unresponsive and bureaucratic mess. There are growing reports of labor shortages. This past summer, nurseries in the Midwest bemoaned the lack of applicants. Just weeks ago, leading Oregon nursery growers expressed deep concern that by the next growing season, labor shortages will be the limiting factor that stifles industry growth.
Without a doubt, we need legislation to fix the myriad shortcomings of the current system. Broad-based and bipartisan federal legislation really is the only way to achieve the fix that’s needed. In the meantime, what could President Obama do? And what might be the implications if he acts unilaterally?
First, the Administration could shift enforcement priorities to stuff that really matters. At a time when all eyes should be on smugglers and cartels, we’ve seen considerable resources wasted on harassing farmers and their workforce, which was hired after showing papers that appear genuine—the legal standard. Homeland Security officials should only be auditing farms when there’s evidence of criminal wrongdoing, not randomly or on the basis of shadowy, anonymous tips from a disgruntled competitor, worker or neighbor.
Second, the Administration could provide some relief from deportation for certain individuals. The default position is likely to expand the Deferred Action for Childhood Arrivals (DACA) policy to unauthorized immigrants who have been here for a long time (maybe 10 years or more) or have U.S. citizen children. Such expansions might affect a considerable number of farm workers. The carrot would be legal authorization to work, but there would be no particular incentive to remain in agriculture. How many would take the risk of coming forward and essentially putting themselves on a deportation list? Would they stay on the farm or leave?
Farm worker advocates would like to see such policies extended to all experienced farm workers. After all, we’ve got a labor shortage now, and anything that stabilizes the workforce might help. Some legal analysts believe a better approach than deferred action to address this issue would be the use of “parole authority,” an option that essentially allows for the waiving of normal immigration rules for specific individuals when it is deemed to be strongly in the public interest. Again, application of parole to specific individuals who can demonstrate a certain amount of agricultural work experience might offer these workers a temporary legal authorization to work, but on a year-by-year basis. A more permanent solution is needed, of course.
The other obvious area for possible action would be to improve the existing visa programs, in agriculture’s case, H-2A. Technically, it’s possible. Most of the cumbersome and unrealistic rules and restrictions of the current program are regulatory in nature, not in statutes passed by Congress. So the Administration could engage in a systematic rulemaking effort to achieve many of the goals of the bipartisan agricultural stakeholder agreement that became part of S.744, the comprehensive immigration bill that passed the U.S. Senate in June 2013. But despite strong support from many in Congress, including some Congressional Democrats, no one is expecting serious effort in this area. After all, President Obama will likely listen to labor unions and worker advocates, and they have little interest in improving the visa program to admit more workers in the future.
Action of some sort is expected as early as September. It remains to be seen what the President will do, and whether it will be done in one step or several. If the President does something big and bold, it will surely be met with a firestorm of Republican opposition. And, it won’t help embattled Senate Democrats running for reelection in states like Arkansas, Louisiana and even North Carolina.
Then again, House Republicans have mostly themselves to blame. They delayed and deferred. They were quick to vilify the Senate’s immigration bill, but then failed to put forth their own vision for reform. With that backdrop, and little hope of needed legislative progress soon, action by the President might be the only action we see for a while. If so, let’s hope it does more good than harm!
Craig J. Regelbrugge is Senior Vice President of AmericanHort. He can be reached at CraigR@AmericanHort.org.