Kennedy's Immigration Law Report : Iowa Immigration Lawyer & Attorney : Austin Kennedy : Brick Gentry Law Firm : Green Cards, Permanent Residency

The H-2A visa program allows U.S. employers to hire workers from specified foreign countries to perform temporary agricultural labor in the United States.  At first blush, the program appears simple enough.  In reality, the program is complex, frustrating and expensive for employers to utilize.  Today, the New York Times sheds light on these frustrating circumstances in an article which highlights the pinch felt by the so-called H-2A farmers. 

Clients routinely tell me that they believe the H-2A program's onerous requirements drive employers away from the program and toward more high-risk labor sources.  As the above-referenced article highlights, this reaction is a simple matter of cost and market economics. 

For starters, in Iowa an H-2A employer must pay his workers at least $11.03 per hour.  This, however, is only the tip of the employer's cost iceberg.  In order to be approved to bring these workers into the country, the employer also needs to pay for and obtain worker's compensation insurance which covers the farm laborers.  In addition, the program requires the employer provide all workers with three meals per day or the meals' financial equivalent.  In addition, the program requires that the employer provide workers with room and board, which must be inspected and approved well in advance of the agricultural season.  The employer must pay for the employees' travel from their home country to the U.S., and back again once the work is complete, while also paying for transportation to and from the worksites on a daily basis.  Finally, the H-2A employer typically pays an attorney to navigate the maize of legal requirements necessary to bring the workers into the country in time for the agricultural season.  When the cost-tallying is done, most farm-based employers understandably conclude they cannot afford to participate in the H-2A program. 

The NYT's article highlights farmers who attempted to utilize fewer H-2A employees this year, largely due to the program's costs, and who also tried to replace the foreign workers with U.S. workers.  One such farmer witnessed twenty five of his local hires leave the worksite after the first six hours of work.  Even with historically high numbers of unemployment in the U.S., farm-based employers are still struggling mightily to locate affordable and reliable laborers, and in most cases, the H-2A program is not an affordable fix.          

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We here at Brick Gentry, PC, have an on-going in-house Continuing Legal Education (CLE) program, whereby all the attorneys take turns presenting on a different legal topic each month.  In addition to conveniently earning yourself a handy CLE credit, the in-house program is great because it helps you become aware of your colleagues' areas of speciality and brings to light interesting cross marketing possibilities that might otherwise fall to the wayside during a hectic work week. 

In December I presented a CLE entitled "The Employment-Based Path to Lawful Permanent Residency in the United States Through the Labor Certification Process".  Despite the clunky (albeit descriptive!) title, the CLE was very well received and a number of partners suggested that I post it as our firm's first free webinar.  We hooked up with Andrew B. Clark, who writes a cool marketing blog here, and Andrew really added a tremendous production value to the presentation I had written, the end result of which you see and can view and listen to below this very post! 

By way of a brief introduction, I should note that there are a number of commonly acknowledged ways someone can immigrate to the United States:  1) through a family member; 2) as an asylee or refugee; 3) through the visa lottery system; 4) through the EB-5 investment program (more coming on this soon); and finally 5) through an employment relationship.  It is this last category, the employment relationship, that serves as the focus of the webinar below.  More specifically, this webinar speaks to a situation where a U.S. employer has a valuable foreign national employee and the employer wants to be able to retain the foreign national employee in the U.S. on a "permanent" basis.  The most common way of helping this employee remain in the U.S. beyond their temporary status is through the labor certification process.  For a whole slew of additional details, see below!  And please keep an eye in the future here for additional webinars from Brick Gentry, PC. 

Brick Gentry P.C. – Labor Certification Presentation – Webinar January, 2011 from Brick Gentry P.C. on Vimeo.

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Amid the hustle and bustle of the holiday season, the District of Columbia Court of Appeals in December issued an important and interesting ruling which held that an undocumented worker injured while working is eligible under D.C.'s statute to receive workers' compensation payments.

Like so many people in our current workforce, Palemon Gonzales originally obtained employment with Asylum Company, an entity who owned and operated the D.C. bar  where Gonzales worked, by using a fake identity and another person's social security number.  

Gonzales was working at the bar as a busboy on June 30, 2005, when a customer threw a bottle that hit Gonzales in the right eye, blinding him.  Gonzales had to have his dislocated lens reattached through surgery and he wasn't able to return to work until January 25, 2006.  The record is somewhat unclear as to when the employer came to know Gonzales was an undocumented immigrant, but in any case, the employer decided to not pay Gonzales' workers' compensation claim based largely on the argument that an illegal immigrant is ineligible for worker's compensation benefits.  

In ruling that the employer was in fact obligated to make workers' compensation payments to the illegal immigrant, the D.C. court focused largely on the fact that D.C.'s workers' compensation statute defines "employee" broadly, and in so doing makes no mention of "illegal aliens" or immigration status in general.  Importantly, the court also noted the strong public policy argument which supports undocumented workers' eligibility for benefits under the workers' compensation statute.  The court reasoned that if employers were not required to make workers' compensation payments to injured undocumented workers, then employers would have a strong economic incentive to hire undocumented workers.  Such a result would contravene the stated purpose of one of our primary immigration laws, the Immigration Reform and Control Act of 1986, which explicitly sought to deter employers from hiring undocumented workers.  Interestingly, the definition of an "employee" under Iowa's workers' compensation statute is very similar to the definition utilized in the D.C. statute.    

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