Florida Grower

Florida Grower's INFOCUS
Five Questions With Mike Nobles, H2A USA

Editor's Note: H2A USA serves the labor interests of its clients by providing documented legal seasonal migrant workers from foreign countries in accordance with the U.S. government provisions for H-2A workers. In keeping with regulations, if the employer has expended all required efforts as defined by Congress for finding workers nationwide, then H2A USA is happy to supplement labor requirements with foreign workers in order for employers to keep their operations running. While the "No-Match" letter is currently on hold due to an injunction filed by a Federal judge in California, if and when the policy moves forward, Nobles addresses a few key concerns growers need to know about.

1 Florida Grower: What changes will be taking place when and if "No-Match" letters go out?

Nobles: The "No-Match" letter will now have teeth, and the bite can be severe. In the past, employers threw the letters in the trash with no penalty. Now, in order for employers to be protected from future fines and prosecution, the Department of Homeland Security has clarified a "Safe Harbor" provision. In order to avoid fines of up to $10,000 and possible criminal penalties per "No-Match" letter, the employee will have to go to the Social Security Office and get a Social Security number that matches his name. If he cannot do that within 90 days of receipt of the letter by the employer, then he must be terminated. If he is not terminated, then the employer may have to face the possibility of paying a $10,000 fine per letter. There is also a criminal provision in the regulation. Employers may find themselves criminally liable and face jail time if it is determined that they had constructive knowledge of the illegal status of the worker and did not take advantage of the "Safe Harbor" provision described above.

2 Florida Grower: How will the no-match policy affect employers who rely on agricultural labor?

Nobles: For those employers who use H-2A workers, there will be no impact on the employers. The employees are given a Social Security number by the Social Security Office, so the employer, grower, or labor contractor will not receive a "No-Match" letter. For those growers who have received a "No-Match" letter, they can take advantage of the "Safe Harbor" provision and face no penalties. In other words, they would have to give a copy of the "No-Match" letter to the employee, then the employee would have to go to the Social Security Office and get a good, verifiable Social Security number. If he could not do that within 90 days, he would have to be terminated.

3 Florida Grower: It also has been reported that the Administration will publish a smaller list of documents that employers can accept to confirm identity. What documents are most likely to be removed from this list, and what documents are most important for employers to verify?

Nobles: A "No-Match" letter means that the documents originally supplied were bogus. This includes what’s on the I-9 - a Social Security card, maybe an Alien Resident card, or even a driver’s license. Now, the government wants a passport for an alien, a state-issued birth certificate (an original stamp with a seal on it may be required), and other documents issued to "Lawful permanent residents of the United States" or aliens with a passport visa option.

The Department of Homeland Security says it will raise civil fines by 25% on employers who "knowingly" hire illegal immigrants. Here’s what constitutes "knowingly":

You have gotten more than one "No-Match" letter for the person working for you and you have not taken advantage of the "Safe Harbor" provisions.
The person tells you he or she is illegal.
If you get a call or letter from a government agency, such as Immigration and Customs Enforcement, indicating that you may have illegals in your employ, you can consider yourself obligated to verify that the Social Security numbers match by calling the Social Security Office (800-772-6270) to see if the employee is legal or not. Not doing so would put you in a position of having constructive knowledge of illegal status. Doing so would be making use of the "Safe Harbor" provision.

4 Florida Grower: The Department of Labor says it will reform the H-2A Agricultural Seasonal Worker Program. What might we expect to come out of this reform?

Nobles: Two things are utmost in reformers’ minds at this juncture. They are going to expedite the processing of the H-2A workers so that it goes faster. Right now it goes from 90 to 120 days, and it takes too long. Secondly, they are going to consider some type of housing allowance so that the farmer doesn’t have to provide housing.

5 Florida Grower: How will the failure to achieve meaningful labor reform by Congress affect agricultural employers in the coming months and years?

Nobles: In my opinion, employers can get as many H-2A workers as they need right now. Other than for a housing allowance for agricultural purposes, I personally believe the H-2A program satisfies the need. The only other major change I would suggest is that in an emergency situation or after a hurricane or other act of God, we should be able to bring in workers with five to 10 days notice.


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