By Tyler Moran
Employment Policy Director

    Late last year the U.S. Dept. of Labor (DOL) issued a guidance letter that requires State Workforce Agencies (SWAs), as of Dec. 15, 2007, to verify the employment eligibility of any worker (U.S.- or foreign-born) referred to an employer in response to an H-2A job order, and that “strongly recommends” using the U.S. Dept. of Homeland Security’s (DHS’s) Basic Pilot/E-Verify system to do so.  Basic Pilot/E-Verify is a voluntary, Internet-based program designed to allow employers to electronically verify whether newly hired employees are authorized to work in the United States.  The new employment eligibility verification requirements are one among many provisions in the five-page guidance memo that have caused concern among immigrant rights advocates.  (Advocates detailed their concerns in a Jan. 8, 2008, letter to DOL Secretary Elaine Chao.) 

    Requiring SWAs to verify the employment eligibility of any worker referred to an H-2A job is a complete reversal of DOL’s previous policy and places additional burdens on applicants for H-2A jobs.  Current law allows SWAs to verify employment eligibility of workers referred for employment; however, most SWAs require only that a worker seeking employment demonstrate, before being referred to an H-2A employer, that he or she is eligible to work in the United States.  It is then the employer’s responsibility to complete an I‑9 employment eligibility verification form for the worker.  DOL’s new policy thus requires more of applicants for H-2A jobs referred by SWAs than it does of other job applicants referred by SWAs, since DOL does not require SWAs to verify the employment eligibility of applicants for non–H-2A jobs. 

    Because the new policy represents a significant change to the employment eligibility verification requirements, farmworker advocates have raised the issue of whether such a policy may be lawfully promulgated without first being subject to the rulemaking process provided for in the Administrative Procedures Act. 

    DOL’s strong recommendation that SWAs use Basic Pilot/E-Verify is as much a cause for concern as is the new employment eligibility verification requirement.  A limited number of SWAs were supposed to begin using Basic Pilot/E-Verify in Jan. 2008 under a pilot program, but that program has not yet been implemented.  A DOL question-and-answer document states that all SWAs will be able to use the program by June 2008.  DOL will need to enter into a memorandum of understanding (MOU) with DHS and the Social Security Administration (SSA) to allow SWAs to participate in Basic Pilot/E-Verify.  This MOU also will allow SWAs to use Basic Pilot/E-Verify to verify a worker’s employment eligibility before the worker is hired, since Basic Pilot/E-Verify rules currently prohibit this practice.

    As of Feb. 2008, approximately 52,000 out of approximately 7 million employers in the U.S. are enrolled in Basic Pilot/E-Verify.  Even in its current small and voluntary state, the program has serious flaws that have been well documented, including its reliance on DHS and SSA databases that have unacceptably high error rates (for more information about such problems, see NILC’s “Basic Pilot/E-Verify: Not a Magic Bullet”).  These error rates disproportionately affect foreign-born workers, who are 30 times more likely than native-born U.S. citizens to be incorrectly identified as not authorized for employment.  Because most workers who perform farm labor in the U.S. are foreign-born, a substantial number of farmworkers who are authorized to work could likely be denied access to H-2A jobs as a result of this new policy.  Workers who are incorrectly identified by Basic Pilot/E-Verify as not authorized for employment have eight days to contest the finding.  Because of the time-limited and seasonal nature of most H-2A jobs, by the time a Basic Pilot/E-Verify error is corrected, the job the worker would have filled may no longer be available.

    More information about administrative changes to the H-2A program is available on the “H-2A News” page of Farmworker Justice’s website.

Foreign Labor Certification Training and Employment Guidance Letter No. 11-07 – Change 1:  Clarification of Certain Procedures for Processing H-2A Labor Certification Applications.