Are workforce woes ahead?

President Trump’s immigration enforcement priorities could create some collateral workforce damage.

From the pages of In Business magazine.

Will President Donald Trump’s immigration policies have a dampening effect on the availability of labor that’s already in short supply? Under the new enforcement guidelines, spelled out in Feb. 21 memorandums, the obvious targets for removal are gang members and violent criminals, but critics charge that any undocumented immigrant who has committed even a misdemeanor could be subject to immigration arrest, detention, and removal from the United States.

Local immigration attorneys say the new enforcement priorities carry uncertain workforce impacts for employers in industries dependent on immigrant labor, particularly agriculture, hospitality, and restaurants and food service. 

Forceful enforcement

The new enforcement priorities are considered an abrupt departure from those articulated in the final two years of the Obama administration. In November 2014, the Obama administration announced new enforcement priorities for the apprehension and removal of undocumented immigrants, including threats to national security, public safety, and border security.

In contrast, President Trump’s enforcement priorities call for the secretary of Homeland Security to prioritize for removal aliens described by Congress in various sections of the Immigration and Naturalization Act, as well as “removable” aliens who:

• Have been convicted of any criminal offense;
• Have been charged with any criminal offense, where such charge has not been resolved;
• Have committed acts that constitute a chargeable criminal offense;
• Have engaged in fraud or willful misrepresentation in connection with any official matter or application before the government;
• Have abused any program related to receipt of public benefits;
• Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
• In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

Addressing a joint session of Congress in February, Trump defended his policies, stating the U.S. has defended the borders of other nations while leaving its own borders wide open for anyone to cross and for drugs to pour in at an unprecedented rate. He also called for a merit-based immigration system in which those seeking to enter a country are able to support themselves financially without taxpayer assistance, and announced that he has directed Homeland Security to create an office called VOICE — Victims Of Immigration Crime Engagement — to serve Americans who are the victims of crime committed by illegal immigrants.

Guiding blight

Attorney Grant Sovern, chairman of the national immigration practice for Quarles & Brady, and Glorily Lopez, immigration attorney practice leader for Murphy Desmond, say the Obama administration’s enforcement priorities provided more guidance than Trump. As a result, it’s hard to know what to tell employers who want to help their employees.

Sovern says the February memorandums outlining the Trump policies do two things. First, they discuss what the current priorities are for deportation, and then they talk about what the allowable deportations are. In the Obama administration, Immigration and Customs Enforcement (ICE) was limited to the priorities of the DHS, which were to target for deportation people with felonies who were involved with gang violence and those who were deemed national security threats. “Everyone else was sort of off limits, as it were, so they wanted to spend all their resources on those groups of people who were deportable,” Sovern notes. “Once they got through those, they thought maybe they would start to look at other groups, so there were priorities and limitations.”

In the Trump memo, Sovern says the new administration opens up both the priorities and limitations. Basically, it takes away all of the limitations so that anybody who is technically deportable may now be the deportation target of ICE. “So yes, anyone who is a restaurant worker or a farm worker or a student who has fallen out of status, or business owners who overstayed their visa, or a nanny who stayed too long or worked for a different family — anyone who is technically out of status could be deported,” Sovern states. “Before, ICE agents were not even allowed by their bosses, not legally speaking but by their bosses who said, ‘Look, we want to concentrate on these gang members and felons before we even spend any time on other people.’ That limitation is gone, so anybody is fair game for deportation now, although the memo does say the priorities are people involved with criminal activity.”

Lopez was also struck by the stark difference in enforcement priorities between Trump and Obama, especially ones that she believes circumvent due process. “The second one pertains to people who have been charged with any criminal offense, even if the criminal offense charge has not been resolved,” she states incredulously. “So it’s someone who has been charged but maybe later on is proven to be innocent, the fact they were charged, even if the charges don’t stick, they could still be subject to removal. The concept of innocent until proven guilty — out the window.”

According to Lopez, another removal provision pertains to someone who commits acts that can be considered a chargeable offense even if no criminal charges have been brought. “That’s someone who they believe has committed acts that constitute a chargeable criminal offense, even though no chargeable criminal offense charges have been brought,” she states. “This is the one, when I read it, I couldn’t believe what I was reading. I had to read it several times because I thought there is just no way. My God, are they insane?”

As immigration attorneys familiar with the nuances of the law and the problems with the existing immigration system, they say immigration enforcement is more complicated than obey the law and you’re welcome; disobey the law and you’re not welcome. “There are many people who say, why does it matter?” Sovern notes. “If someone is out of status, why should we worry about who might be removed or not? That’s a very long discussion and some of it is political, but we don’t know whom it applies to and who is the target. In a system like we have, where we have laws and lawyers and courts to interpret them, it’s a good idea to know how the laws will be applied.

“Those principles are very important to our society so that business and employees and individuals and organizations know what they can and cannot do,” he adds. “So now to have such a dramatic change, without written rules, is a very difficult way to work.”

(Continued)

Farming it out

Sovern and Lopez believe agriculture is the industry that could be most impacted, as dairy operators in particular rely heavily on immigrant workers. The state’s Dairy Business Association says farmers continually struggle to find an adequate labor supply, noting that cows must be milked every day, often two or three times a day, in addition to other farm work. The organization lobbies state government for a favorable environment for dairy farm employees, regardless of their immigration status.

According to a 2016 Wilder Research study titled “Farmworkers in the State of Wisconsin,” there are an estimated 30,800 to 36,300 farm workers in the dairy industry in Wisconsin. Rod Ritcherson, a spokesperson for United Migrant Opportunity Services (UMOS), which offers programs and services to farm workers and other immigrants, says because of the immigration policies of the two previous administrations, the net flow of immigrants to and from the United States is now reversed.

In other words, he says more immigrants have been leaving than entering the country, and therefore if the new immigration policy is even stricter, one could project this trend to continue and perhaps accelerate. In Ritcherson’s view, that could negatively impact the ability of agricultural employers in Wisconsin and around the nation to maintain the level of workforce needed to be competitive and to grow Wisconsin’s economy.

He reiterated that migrant and seasonal farm workers are vital to Wisconsin’s agricultural economy, and acknowledged that UMOS clients are on the nervous side. “We hope to see immigration reform policies that are humane, and allow hard-working, law-abiding, immigrant citizens to realize their American dream,” Ritcherson states. “What we hope not to see is immigration reform policies that hinder agricultural employers’ abilities to recruit and hire migrant and seasonal farm workers to meet their workforce needs to grow Wisconsin’s economy.”

Ed Lump, president and CEO of the Wisconsin Restaurant Association, says it’s too early to tell whether the president’s immigration policies have impacted the restaurant workforce, but added that the ultimate solution is comprehensive immigration reform. Some Republicans have said comprehensive immigration reform is not possible without first securing the southern border, but the WRA favors comprehensive reform measures introduced in Congress that create a legal status for undocumented workers who are already here, unless they have committed felonies or violent crimes, “so they can come out of the darkness, legitimize themselves, and pay taxes, and frankly to protect their employers,” Lump states. “We know that a lot of the people who came here are law abiding and hard workers and have families, and we don’t want to see them divided. We’d like to see immigration reform that finds a path for them.”

In a prepared statement, Charlie Eggen, general manager of the Verona Hotel Group, acknowledged the workforce uncertainty but added that immigration policy should strive to achieve a balance. “As a hotelier, I hope for government at all levels to develop balanced policies that promote travel and a welcoming experience for those who wish to come — both as employees and as visitors — while also ensuring the safety of our communities and families. If all undocumented immigrants were to leave the workforce voluntarily or otherwise, there is a risk of unfilled gaps in employment. Good immigration policies will help many industries continue to meet the increasing demand for employees and provide opportunities for people to safely follow dreams for their families.”

Dressed to the I-9s

While waiting for the workforce impacts of these enforcement priorities to reveal themselves, about the only tangible advice local immigration attorneys can provide is to have the I’s dotted and T’s crossed on employee I-9 Employment Eligibility Verification forms. The I-9 form is used to verify the identity and employment authorization of people hired for employment in the United States, both citizens and noncitizens. On the I-9 form, completed by both employees and employers or authorized representatives of the employer, an employee must attest to his or her employment authorization in the United States.

The employee also must present an employer with acceptable documents proving their identity, and employers must examine the employment eligibility and identity documents to determine whether they are reasonably genuine. “Every employee who starts work has to fill out a form I-9 and produce documentation that proves they are eligible to work in the United States, and by and large employers do a good job of that,” Sovern notes. “There are some who don’t care and they often get prosecuted, but most employers do care about it.”

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