August 5th Cliff: How Humanitarian Parole and TPS Terminations Are Reshaping American Agriculture

announcer: 00:01

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Lauren Clarke: 00:37

Hello, immigration nerds. I'm Lauren Clark, managing attorney at Erickson Immigration Group. I am a fellow nerd and immigrant and host of this amazing podcast On every episode, we're joined by the smartest nerds in the know as we cover trends in business culture, technology and politics. At the intersection of global immigration. Today we're diving deep into a crisis brewing in American agriculture. We'll explore how the August 5th termination of TPS and humanitarian parole programs is creating an unprecedented workforce shortage. The ongoing challenges with the H two A Visa program and what happens when farms trying to follow the law face greater penalties than those cutting corners. Joining us now from Albany, New York is immigration attorney with deep experience in agricultural labor law. LJ Dorigo, a partner with the Harris Beach Law firm. Lj, welcome back to the Immigration Nerds Podcast.

Leonard J. D'Arrigo (LJ): 01:37

Thank you, Lauren. Great to be back,

Lauren Clarke: 01:39

Lj, since the last time we spoke, the immigration landscape for agriculture has become even more complex. Can we start by what I've heard you call the August 5th cliff? Can you explain what is happening and why this date is so significant?

Leonard J. D'Arrigo (LJ): 01:56

Sure, Lauren. So several TPS designations are terminating on August 5th and others in September. So right now we have Nepal that's terminating on August 5th, Cameroon also on August 5th. Honduras is terminating on September 8th, Nicaragua on September 8th in Haiti on September 3rd. So we've got quite a number of all of these programs just culminating in this termination. There's really no reliable stats on the number of farm workers on TPS. However, there is an estimated 76,000 of TPS holders that are in food related occupations. And it also really depends on the state. So there are certain states that are going to be impacted much more than others. So for example, Florida leads the number of TPS holders at 357,000. Texas has 124,000 TPS holders, New York, 86,000 and California about 72,000. So these are all individuals that are going to be taken out of the workforce, and so there's really going to be an impact on the economy in general. Many of these workers are filling our lower skilled positions in agriculture, manufacturing, and hospitality, but we also have a lot of clients in the healthcare industry that employ TPS workers as well in certain positions.

Lauren Clarke: 03:14

And I think some listeners might be surprised to understand that TPS workers are in the agricultural landscape. As I understand, you've been advising clients to kind of prepare for this since the beginning of the administration. What has that preparation look like?

Leonard J. D'Arrigo (LJ): 03:30

So I've primarily advised my employer clients to take an inventory of their vulnerable employee populations, specifically those that are on TPS in humanitarian parole statuses, asking essentially, what would be the impact if these employees suddenly lost work authorization, what would be the impact on the business? So at that point, once they identify what population they have that are at risk, we look at any individualized options for these employees. Some employees maybe we can change to a more secure status such as H two A or another Visa status, but in many cases we can't. It really depends on their immigration background and whether they've accrued any unlawful presence or not.

Lauren Clarke: 04:15

Well, lj, I think that hits a bit at this compliance paradox. You've mentioned the H two A visa, which is something that we've spoken about before in the agricultural area, and really the struggle of firms to be able to follow the law through going through the H two A program and being compliant there. Are there likely to be firms that are going to be penalized more because of the TPS changes as well as the H two A quotas than those who potentially may be operating in the gray areas?

Leonard J. D'Arrigo (LJ): 04:42

Yeah, I think one of the downsides is that by participating in some of these legal visa programs, specifically H two A, an employer is consenting and agreeing to audits and investigations of their compliance. So a lot of times this can be through several divisions of the US Department of Labor, including wage and hour division, office of Foreign Labor Certification, but we also see audits and investigations by U-S-C-I-S, and I always tell my clients that perfect compliance is impossible. Many employers are therefore subject to civil money penalties and back wages for violations specifically of the H two A program. Whereas employers that aren't doing things the legal way and consenting to these investigations and audits may not be subject to that initially. But the problem is that over time, given the level of enforcement we're seeing, it's eventually going to catch up to them if they're not paying attention to compliance. And

Lauren Clarke: 05:39

I think that's a key. Acknowledgement enforcement is a key idea or I guess a key focus for this administration across not only the H two A program, but immigration as a whole. So where you have a farm that is potentially going to be impacted by, as we titled the August 5th crisis or the compliance of an H two A program, how essentially can a firm deal with a workforce loss like this?

Leonard J. D'Arrigo (LJ): 06:06

So we always try to come up with sort of a rapid response plan of, we hear of that in the ice context a lot, but we also want to look at it from an operational standpoint. How are they going to replace these workers that have been trained and have been loyal to that employer if they're suddenly gone? So we've got a lot of employers that one are looking more seriously at the H two A program as a viable alternative to bringing in reliable seasonal labor. Sometimes the workers that are currently there on TPS would be eligible for H two A, but a lot of times they're not. So they're bringing over a new crop of workers on the H two A program that can take time though, and it's seasonal. So if it happens to be during the off season, then they have to wait for the spring to bring them over. So in the interim, a lot of them are looking at farm labor contractor staffing agencies to sort of backfill those positions that are being targeted or lost.

Lauren Clarke: 07:02

And I guess it kind of acknowledges two things. We have two players in this workforce, the employer as well as the individual worker. If we look at kind of the human impact of these changes that are coming through, some of these individuals have been working for the same farm for 20 years. They live on the farm living as a family with their workers. What essentially do you think happens to these relationships when enforcement intensifies and or there isn't an alternative for them to obtain work authorization, say through the H two A program?

Leonard J. D'Arrigo (LJ): 07:34

Yeah, so I think employers are looking for any option available. So when I get a call, they're like, we have a worker here that is undocumented or they're on TPS, are there any other options? So we will then analyze the specific situation to see if they're eligible to change to another visa status. Also, a lot of farms are very willing and eager to sponsor them for permanent residence status. But a lot of the obstacles are that a lot of these TPS workers have had prior unlawful presence before they had TPS. So if they've been in the US for over six months, there's a gap in status. They could trigger a three-year bar or they could trigger a 10 year bar. So that creates a lot of issues with finding a valid status. So in many cases, there are unfortunately aren't any options. So it's either the workers are to leave after their TPS expires, they're receiving notifications that they're no longer in status and they're to self deport essentially, or leave the us. So what I suspect is going to happen is a lot of them may not leave at all. They're just going to stay until ICE comes and gets them. So that's yet to be seen now that we're seeing upcoming terminations, how many people are actually going to leave, how many are going to stay, what the administration's response is going to be, and how they're really going to enforce whether or not these individuals are leaving or not.

Lauren Clarke: 08:57

I think one of the things with enforcement, I think particularly within the agricultural arena is when we see enforcement, we see it targeting potentially for illegal workers, but we've seen trends, or at least we're hearing about trends where even legal workers are disappearing from farms simply just due to the fear of potential enforcement. How widespread do you see that problem? And really, is there anything that employees can do to try and combat that fear, particularly if they hear maybe ICE was in a neighboring county or a neighboring farm?

Leonard J. D'Arrigo (LJ): 09:28

Yeah, I think a lot of times that's what it is. It's the perception In reality, I haven't seen a significant increase in ICE raids on farms. But I think the perception is that there is, and a lot of that is just because we're living in a culture of fear right now. All you see when you turn on the news is ICE going after people, but we haven't seen necessarily them going after farms. But we do see that widespread panic and fear among all classes of employees, whether they're here legally, whether they're US citizens, whether they're on green cards or non-immigrant visas. But the reality is that a lot of these legal farm workers have family that are undocumented and they're here with them. So I think it's not necessarily a fear for themselves, but it's a fear for their family. So if they hear reports that ICE is down the street or in town, they're going to protect their family, and so they would make a move to protect them. So a lot of times it's not necessarily that the worker themselves are fearful of being deported, although some of them are, but I think a lot of it is when they have the family here.

Lauren Clarke: 10:36

And I think, as you mentioned, we have this enforcement perception, but what we've also kind of heard rumblings of is that there might be a potential to streamline the H two A process. Is this something that we could expect to see?

Leonard J. D'Arrigo (LJ): 10:49

Yeah, so we're hearing some positive movement in that area. So the Department of Labor is now establishing a temporary department that basically is going to oversee Visa operations in an effort to streamline. So they're looking at different options and different ways that they can do that. So some of the missions of this department is going to be really to develop customer-centered policies to streamline visa issuance, coordinate immigration related work internally across the different offices and divisions of Wage and hour, as well as working with U-S-C-I-S-D-H-S and Congress in sort of streamlining visa operations. So that's a positive move. And the person that has been charged with heading at Brian AK has been a friend to the American Immigration Lawyers Association and very friendly in terms of visas H two A and H two B. So he's in charge of sort of the temporary visa side.

Leonard J. D'Arrigo (LJ): 11:44

So we're very optimistic about that to the extent that we see dramatic changes in the H two A program itself. We don't know any changes in how we apply temporary or seasonal has to come from Congress. So there were some hopes that there may be options for the dairy industry where currently they're not eligible to participate in H two A because milking cows is year round. So there were some hope that something would be addressed to accommodate the needs of dairy farms that would, again, I don't think that's something that Department of Labor can do on their own. It's going to require a change in the H two A regulations.

Lauren Clarke: 12:24

These changes are not the only change that we have seen with the Department of Labor. Most recently, department of Labor suspended, the enforcement of the 2024 farm worker rule. How has this type of change been received?

Leonard J. D'Arrigo (LJ): 12:38

Yeah, so I think that was a very welcome change. This rule has been mired in litigation for months and months and months, and it created widespread confusion among employers because enforcement and the applicability really depended on what state you are in, whether you were a member of a certain agricultural association. So there were different rules that applied to different farms in different states. So it became unworkable even for Department of Labor to process H two A applications. They'd have to have a different system or set of rules for each employer depending on where they were located. So this is really a great move. Most of them were the worker protection provisions ability to organize and participate in union activity. But because of the confusion that surrounded this role, I think that was the right move.

Lauren Clarke: 13:32

And so I guess in the background of these positive steps that we just discussed, and then looking ahead, do you think American agriculture faces serious headwinds when it comes to immigration?

Leonard J. D'Arrigo (LJ): 13:44

Yeah, I think we're always going to have a challenge with agricultural labor. I think no matter what happens, farms are always going to depend on foreign labor to meet these positions simply because US workers just don't want to do the work. They don't want to work out in the field long hours and all weather conditions. They don't want to shovel cow manure. So somebody's got to do this, and it's going to fall on the foreign labor community, whether that means increase usage of the H two A program or whether that means employers just doing the status quo, turning a blind eye to immigration status, and just taking their chances that ICE may come and do an I nine audit or an actual ice raid. But I think we're always going to be faced with that challenge with ag labor, and it's always going to be filled with probably non-citizens.

Lauren Clarke: 14:32

And I guess, do you think that that labor reality in agriculture where it differs so much from other industries in terms of using foreign workers is something that this current administration understands and that we will likely see maybe more improvements for?

Leonard J. D'Arrigo (LJ): 14:49

So I've always said specifically under this administration that probably the safest visa classification that we have are H two A and H two B, because I think it's pretty undisputed that we don't have enough US workers that are willing to fill these roles in agriculture, hospitality, manufacturing, and I think it's less polarizing. So obviously immigration is probably the most polarizing topic that we have, and that's why it's probably we're never going to agree on comprehensive reform. But I think most people would agree that there are certain positions that you can't find US workers to perform. And so that's where the H two NH two B programs come in. So I think we've seen positive statements and steps come out of this administration for those programs. President Trump uses both H two A and H two B programs for his companies. I think there is a positive view of these programs. That's one thing that we're optimistic of, that we think farmers have a voice in this administration. And I think that if there's going to be any immigration reform, it's probably going to be in the seasonal visa area.

Lauren Clarke: 15:55

So then I guess the million dollar question, or maybe the reality question is what should primes be doing right now to protect their operations? Noting TPS starts having these impacts from August 5th, and is it really viable to convert workers to those programs being H two A and H two B before that deadline?

Leonard J. D'Arrigo (LJ): 16:14

Yeah, I think the number one thing that they should all be doing right now, and most of them is taking an inventory of their workforce, separating out those individuals that are on TPS or humanitarian parole, those that may or may not be documented, just so that they can sort of get a sense of what the impact would be and whether there are existing staff that could backfill those positions. Other times we're exploring the H two A program. So many employers are now signing up for H two A to kind of get that process started. Others are looking for staffing agencies, farm labor contractors to sort of see if that's an economical option for them. Sometimes it's not. It's just more expensive than doing H two A. So sometimes it's not an option. But those are the three steps that I think most employers are taking.

Lauren Clarke: 17:09

And so obviously we're big proponents of the H two A and we see positives for that in the future. But as we kind of noted at the top of the podcast, there's a lot of compliance that comes with that. And so for a farm or an employer who's looking at the H two A process and has concerns about those compliance requirements, what advice could you give for that option?

Leonard J. D'Arrigo (LJ): 17:31

Yeah, I think it's just working with a good agent or attorney and sort of that can counsel and advise on what these requirements are. I think it's those employers that try to do it on their own or using an agency that maybe doesn't focus so much on compliance where they run into problems. So I think it's doing their homework, talking to somebody that's competent and that is focused on compliance to guide them through. And I think, yes, compliance is difficult and there may be some consequences for non-compliance, but at the end of the day, the H two A is always going to be the insurance policy, but we do have other employers out there that are willing to take the chance. They don't want to spend the money on an H two a program. It can be expensive, especially our small family farms that it's a mom and pop farm that they really don't have any employees except for family. They may be shut out of the program just because of the cost, and some just are willing to status quo, take their chances and just turn a blind eye to immigration status.

Lauren Clarke: 18:33

I think one of the key things that we really kind of acknowledge here on the podcast with immigration is that it has such a trickle down effect into so many facets of the economics, society, cultural families, and so understanding that we have these changes coming through, we have programs, but you have to apply, comes with compliance restrictions and other options might not be fiscally or financially an option. What do you think the agricultural landscape and workforce will look like in six months?

Leonard J. D'Arrigo (LJ): 19:05

I don't know that it's going to look significantly different. As I said earlier, I think ag positions are always going to rely on foreign labor. I just don't think there's going to be a sudden cultural shift where all of a sudden we've got high school students, we've got kids home on college break that are going to be dying to do these farm work positions. It's just not going to happen. We've already gone through our cultural shift and US workers just don't want to do this. Their young people have more opportunities. Right now, there's internships, they're in school, they're not available to do seasonal work. So I think it's always going to be filled by either foreign labor that's legal or we have 46% probably that are filled by undocumented workers right now. And so that's probably always going to be the case, even though we're seeing unprecedented enforcement, somebody's going to be filling these roles and it's going to be foreign labor.

Lauren Clarke: 19:58

And I think that's probably the key takeaway that I take from our conversation today is that even though we're about to see a huge impact to a large part of foreign work through the ending of TPS programs, there are options available. And particularly within this sphere, it seems something that there's a lot of favorable outcomes to be had for employers, but also for employees on those farms and within that kind of agricultural area.

Leonard J. D'Arrigo (LJ): 20:25

Exactly.

Lauren Clarke: 20:26

Well, LJ Dorigo, thank you so much for sharing your expertise and insights as always with us on the Immigration Nerds Podcast.

Leonard J. D'Arrigo (LJ): 20:34

Thank you, Lauren.

Lauren Clarke: 20:35

And thank you to all you nerds out there listening. You can find links to the topics we discussed today in our show notes, and you can track everything going on at Erickson Immigration Group at our website, EIG law.com. And remember, if you believe immigration makes us all better, then this is the podcast for you. Subscribe and share and meet us right back here for another new episode of Immigration Nerds.