Monday, April 22, 2013

What the Senate Immigration Proposal Would Mean for Wineries

By Cary Greene, Outside Counsel

With the Senate immigration reform bill out this week, wineries are already asking about its potential impact on their businesses.  On the broadest level, the bill contains sections that deal with undocumented farm workers currently in the U.S. and with temporary—the bill uses the term “nonimmigrant”—farm workers that may be needed in the future.

Importantly, the bill’s agriculture labor reform provisions are not dependent on any border security enhancement “triggers.”

Blue Card, Farm Workers Currently in the U.S.  Undocumented farm workers currently in the U.S. are eligible for a work card (blue card) and possibly permanent resident status (green card) as long as they meet certain benchmarks.  To qualify for a blue card, undocumented immigrants need to prove a minimum of 100 workdays or 575 hours in the two years prior to December 31, 2012.  This achievable threshold is designed to encourage undocumented farm workers with agricultural training to continue in agriculture.

The blue card provisions need to be implemented through regulations largely written by the Department of Homeland Security (“DHS”) and the U.S. Department of Agriculture (“USDA”).  To qualify for a change in immigration status, blue card eligible workers will have to complete a background check and provide a fairly detailed set of documents within a limited time following final rulemaking.  While the rules implementing the blue card are supposed to be issued within a year of the law’s passage, delays should be expected.

Nonimmigrant Visas, A Plan to Replace the H-2a.  “Nonimmigrant” farm workers would be eligible for a visa in two flavors (i) portable, and (ii) tied to a particular employer.  The program is supposed to be overseen by USDA, and there’s a cap on the number of available visas.

Long-term, the “nonimmigrant” program would replace the complex H-2a program, but the provisions do not appear to go into effect until late 2014.  USDA would then have a year to implement rulemaking, but, again, delays would not be surprising.

Implementation of E-Verify.  The Senate bill proposes phased in, mandatory use of e-verify within 5 years.  If an employer has more than 5,000 employees, e-verify kicks in after two years.  If more than 500 employees, three years.  All agricultural employers are supposed to be phased in after four years, but there’s a provision that would give USDA the flexibility to determine if e-verify is workable within that time.

Keep in touch with your trade associations to stay on top of the latest developments.


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