A question that dairy farmers and other employers of undocumented immigrants often wonder about is why those persons cannot earn a legal status in United States after being here for 10, 20 or more years without accumulating any criminal violations.
That question and similar ones are often posed to Luca Lopes Fagundes, an attorney and counselor at law who is based in Green Bay. He often represents immigrants who are employed on dairy farms.
With an assigned topic of how immigrants can obtain legal status in the United States, Fagundes was a guest presenter at the semiannual farm management update for agricultural professionals (primarily agricultural lenders) sponsored by the Extension Service offices in east central counties.
Legal Status Variations
As a starting point, fagundes explained that there are three basic categories of legal status — a legal citizen, green card work permit only and undocumented or illegal. He noted that the special H1 and H2 program visas entitle an immigrant to get a green card or work permit.
In general, any immigrant who remains in the United States for more than one year at a time is considered to be illegal. Although there are exceptions for persons with special skills such as veterinarians or those with dairy production degrees, the great majority of undocumented immigrants cannot receive a work visa after being in the United States illegally for more than one year.
Undocumented immigrants who file an application for citizenship often find that the United States Customs and Immigration Service takes their application fee but does not grant their appeal, Fagundes said. They're expected to provide firm evidence of where they lived during any period of time in question.
To address some of the complications that arise under the current regulations, especially for families of immigrants, President Barack Obama has instituted a program which grants a special status for three years with an opportunity to renew it before those three years have elapsed, Fagundes said.
Announced on and effective as of Nov. 20, 2014, is the program known as Deferred Action for Parental Accountability. It applies to undocumented immigrant parents of children born in the United States.
DAPA eligible parents must have resided in the United States continuously since before Jan. 1, 2010, and must have been physically present in the country on Nov. 20, 2014. They must also be in the country when making a request to USCIS for consideration under DAPA, which is to be administered on a case-by-case basis for individuals who meet the guidelines and who pass a background check.
Obtaining DAPA status would entitle a person to obtain Social Security and Medicare benefits and to obtain a driver's license. Fagundes noted that DAPA does not apply to anyone (including married persons) who does not have a child that was born in the United States and emphasized that acceptance under its terms will not confer legal status on the person.
Fagundes offers consultation for persons who want to apply for DAPA status. He said he understands that there could be reluctance to register for DAPA by those who have a criminal background. Parents who have not lived in the United States continuously since Jan. 1, of 2010, are not eligible.
DAPA also faces a legal challenge for which the Supreme Court of the United States has already heard oral arguments and on which it could issue a ruling in June, Fagundes reported. That case could result in a 4-4 vote in the ideologically divided Supreme Court, which would leave a ruling against DAPA by a district court in Texas in place for the area in which its legal jurisdiction applies.
It's also possible that the Supreme Court could render a majority vote on DAPA, Fagundes observed. He said another possibility is that it could defer a ruling until the court has a full contingent of nine justices.
DAPA is focused on keeping families together, Fagundes observed. It follows on the heels of the Deferred Action for Children Arrivals program which Obama proclaimed in 2012 to give legal status to children who would otherwise be undocumented and illegal.
For adults who don't meet the provisions of DAPA, Fagundes said one avenue for some would be to seek a 'family petition' provided that a family member already has legal status.
Fagundes observed that persons who are in an undocumented or illegal status might not want to risk applying for any of the programs that are available. That's because it's legally possible that they could be deported solely on the basis of being undocumented although most deportations are ignited by a conviction for a criminal violation, he pointed out.
Although there's been talk about deporting all of the estimated 11 million undocumented persons living in the United States, Fagundes isn't convinced that the financial and physical resources are available for that to happen.
During the past 10 years, the undocumented persons who are employed in the United States have had somewhere between $11 and $16 billion withheld for Social Security deductions — funds that are being held in an unassigned account, Fagundes explained. When persons obtain a legal status, it will prove to be to their benefit to have had a legitimate Social Security Account Number and a consistent use of name while they were employed, he stated.
The I-9 dilemma
Another complicating factor in the overall picture is the federal requirement that employees submit an I-9 form to their employer — a form which is intended to verify that the person is legally eligible for employment, Fagundes said.
Seventeen states have mandated that employers verify the information — an electronic procedure called E-Verify — that employees provide on the I-9. In those states, there are differences on whether the mandate applies to private or public sector employees.
Wisconsin does not have such a mandate, Fagundes points out. He would like to know how the agriculture sector is faring in the states which have a mandatory E-Verify for the I-9 forms.
Fagundes also cited a study conducted in 2010 by National Milk Producers Federation. That study reported that the loss of the undocumented foreign-born employees — estimated to be more than one half of the total — would result in a loss of up to $11 billion for the dairy industry.
In additional information provided to the Wisconsin State Farmer, Fagundes cited a study in 2010 which estimated that there were about 65,000 unauthorized immigrant workers in Wisconsin Research by the University of Wisconsin-Madison indicated that about 40 percent of dairy farm employees in the state are immigrants but how many of them are unauthorized is not known.
As he works with dairy farmers and their employees, Fagundes has heard several variations of the statement that a mandatory E-Verify for the I-9 forms 'would kill the dairy industry in Wisconsin.'