The Immigration and Reform and Control Act of 1986 (IRCA) made it unlawful for employers to hire or employ individuals not authorized to work in the United States. Since that time, employers have been required to use the Immigration and Naturalization Service (INS) Form I-9, which is completed by job applicants who submit the form to employers with specified documents that testify to their identity and work authorization. IRCA, however, prohibits employers from questioning the documents offered by applicants, and any employer who questions the documents offered by job applicants or refuses to hire based on reasonable-appearing documents can be sued, not only by the job applicant, but also by the Department of Justice. The Department of Agriculture website explicitly advises farmers that “Employers must accept any of the documents or combination of documents listed on the back of the INS Form I-9 to establish identity and employment eligibility.”
As a result of these policies instituted 25 years ago, use of fraudulent documents by workers has become prevalent, in agriculture and elsewhere. There have been bills introduced in the past that would mandate that employers use E-Verify and phase in the requirement over several years. For many agricultural producers, the requirement would begin in three years; for others, the requirement could start sooner. Most importantly, the legislation contains no worker program for agriculture – either in remedying problems with the H-2A program or in instituting any additional program to assist agricultural employers. If the mandatory E-Verify program goes forward by itself, without providing producers a source of legal workers, it would present a potentially insurmountable challenge for many agricultural employers. Farm Bureau economists estimate that agricultural production would fall $30-60 billion and food prices would rise 5-6 percent if Congress passes enforcement only reform (including border security, interior enforcement and e-verify).
Farm Bureau believes any federal mandates on employers to implement e-Verify must:
- Be based on an employment eligibility verification system that is simple, conclusive, and timely;
- Provide an affirmative defense for employers acting in good faith;
- Allow status adjustment for workers not authorized prior to implementation; and
- Be preceded by full implementation of a usable agricultural worker program.