Last March, the United States Department of Justice (“DOJ”) launched an investigation against the Washington Potato Co. (“the Company”) in response to claims the Company violated federal immigration law by asking work-authorized non-U.S. citizens at its vegetable processing plant to present specific documents (e.g., employment authorization records or green cards) to verify their work eligibility, but did not ask U.S. citizens to provide similar documentation.   

The Immigration and Nationality Act’s (“INA”) anti-discrimination provision prohibits employers from demanding that employees submit different or unnecessary documents based on the employee’s citizenship, immigration status, or national origin. This means, when an employer requests documents for Form I-9 purposes, the employer may not ask for any specific or additional documents.  Employees must be allowed to provide acceptable documents.

On Wednesday, Rep. Bob Goodlatte’s Agricultural Guestworker Act (“AG Act”) passed the House Judiciary Committee. The two-day hearing was full of passionate argument on all sides, but ended in a close vote of 17-16.  We previously reported on some of the details of this proposed H-2C program here, but the passed AG Act contains several notable changes: 

On October 2, 2017, House Judiciary Committee Chairman Bob Goodlatte (R-Va.) introduced a new proposed year-round agricultural guestworker program (“the AG Act”) which aims to replace the current H-2A federal guestworker program as we previously reported here.

The AG Act proposes to replace the H-2A program with what will be called H-2C which will be administered and enforced by the United States Department of Agriculture (“USDA”). The AG Act aims to consolidate all food-related agricultural guestworkers under one system. All of the current H-2A and H-2B workers are included, in addition to groups that were not previously included, such as dairy and fishery workers.

On May 30, 2017, a California Legislature committee amended a proposed bill that would explicitly state the rights of immigrant workers at their job site, protect workers from employer self-audits of I-9 documents, and severely penalize employers who do not comply with the law. The Immigrant Worker Protection Act (“AB 450”) would specifically require employers to ask for a warrant before granting the U.S. Immigration and Customs Enforcement (“ICE”) access to nonpublic areas of work site and prevents employers from give ICE confidential employee information, such as social security numbers, without a subpoena.

On September 5, 2017, the Trump Administration announced it will end the Deferred Action for Childhood Arrivals (“DACA”) program. This decision has left many employers uneasy about how to handle employees whose employment authorization was granted through the DACA program and if they are still eligible to work in the United States.

The Saqui Law Group has compiled the following Questions and Answers regarding concerns employers may have following the announcement.

1.         Q.  What is DACA?

A. The DACA program was created by President Barack Obama on June 15, 2012. It allowed for undocumented immigrants who came to the United States before the age of sixteen and who met certain criteria to enroll in the DACA program and enjoy (1) a period of deferred deportation action and (2) eligibility to request employment authorization. Currently, there are approximately 800,000 DACA participants.

Beginning May 1, 2017, new permanent residents and workers granted employment authorization will begin receiving redesigned green cards and employment authorization documents (“EAD”). The new cards and EADs are a part of the United States Citizenship and Immigration Services’ (“USCIS”) “Next Generation Secure Identification Document” project and come with “enhanced graphics and fraud-resistant security features” which create cards that are highly secure and more tamper-resistant than the ones currently in use.

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