Mar. 14 2017 – Grapevine Letter from Tom Danowski
Changes in federal immigration policy enforcement have led many in our wine community to ask what steps they can take to protect their businesses and communicate effectively with their workforces.
The Oregon Winegrowers Association (OWA) is a member-supported organization focused on policy, regulatory and legislative issues of interest to Oregon’s grapegrowers and winemakers. It operates independently of the Oregon Wine Board and receives no funding from the grape tonnage tax.
OWA management and attorneys at Davis Wright Tremaine (DWT) have been following interior security developments and are providing this information as a service to the wine industry.
The importance of heightened federal enforcement is illustrated by this example of a recent Department of Homeland Security (DHS) policy change that could affect Oregon growers and winery owners. New agency policy guidance suggests that DHS intends to apply the “Expedited Removal” process to the maximum extent permitted by law.
A person subject to Expedited Removal is immediately ordered removed without any further hearing, review or opportunity to apply to stay in the United States. Current enforcement policy applies Expedited Removal (a) to aliens from Canada or Mexico with criminal backgrounds encountered within 14 days of entry who are apprehended within 100 air miles of the border; or (b) to those who arrived in the last two years by sea. Under its new enforcement policy, however, DHS will now be authorized to apply Expedited Removal to anyone who has not been continuously present in the country for two years prior to apprehension and to individuals anywhere in the U.S.
To put this development in perspective, and to better understand the current immigration policy climate as it relates to employment, we recommend reviewing this DWT document.
To cope with new enforcement policies, here are more specific details on resources wine business owners and their vineyard management companies may find helpful:
- To prepare for a possible worksite visit from DHS agencies, particularly Immigration and Customs Enforcement (ICE), winery and vineyard owners are strongly encouraged to contact a lawyer for guidance in auditing their federal forms related to immigrant workers, most importantly the Form I-9. Davis Wright Tremaine notes that the three most likely forms of immigration enforcement actions employers may encounter are worksite raids, work visa program compliance visits, and Form I-9 investigations.
- Because of the expansion of “joint employer” concepts into numerous areas of employment law, growers who rely on vineyard management companies or farm labor contractors should reaffirm that the vendors they work with are following proper Form I-9 compliance practices and not violating the law by hiring or continuing to employ individuals the vendor knows to be unauthorized to work in the U.S.
- Wine business owners can distribute informational resources to workers now, allowing them to prepare themselves for possible questioning from law enforcement. Some materials that we have identified include:
- This bilingual Red Card;
- English and Spanish language “Know Your Rights” fact sheets that answer questions related to a possible encounter with immigration enforcement officers;
- Additional information in English and Spanish from the American Immigration Lawyers Association (AILA), which will assist workers to know their rights at home, in public and at the workplace;
- a list of Oregon-based immigration attorneys, primarily in Portland, provided by the AILA.
The OWA is in contact with other agriculture trade groups, the Oregon Restaurant & Lodging Association and the Oregon Farm Bureau to coordinate messaging and share action plans. We will work to keep you updated as we get further information relevant to immigration enforcement and as the OWA sets the date of an upcoming webinar for members on immigration policy enforcement. Click here to learn more about the OWA and to join.