Mar 5, 2010

Focus of Immigration Enforcement on Employers

In June 2009, the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) agency issued 650 I-9 audits, more than in all of 2008. In November, ICE issued another 1,000 audits.

The increased number of audits is the result of the change in presidential administrations. The Bush administration had an emphasis on employees, but the Obama administration is looking at employers and fining them for I-9 violations, said Blair Babcock, an ICE agent. Babcock gave a presentation on I-9 audits to a group of growers in West Olive, Mich., in January.

During the first round of auditing in June, ICE found 16 percent of the 85,000 workers were ineligible. Half of the companies audited will receive some type of enforcement action, and 61 had already received a Notice of Intent to Fine based on their I-9 reporting. In Washington, 33 producers were audited, including 5,000 acres of apple and cherry orchards growing for Gerber. As a result of discrepancies on I-9 forms, between 600 and 800 employees were let go. Audited businesses were given a list of employees to terminate. If they weren’t let go or the problem wasn’t resolved in 10 days, the company faced a $1,000-a-day fine.

Agricultural businesses – from farmers to food processors – are part of the nation’s critical infrastructure and therefore are more likely to be targeted by ICE audits. In the most recent round of audits, Babcock said agents were told to audit five companies of a certain size and in a certain geographic area. Those five companies weren’t pulled out of a phone book – they were selected from a “lead box” that an agricultural business could be in and not even know it.

Leads can come from a variety of sources, but the most common way a company ends up in an ICE lead box is through traffic stops, Babcock said. When workers get pulled over, they often don’t hand over identification if their status is questionable. If that happens, one of the questions police officers will ask is where they work. That information is entered into a national database and can put a farm on the list for an audit. ICE also receives leads from national tip lines and from other agencies, like the Department of Labor.

Audits from ICE can go beyond fines. The I-9 document is a legal form that can be used as evidence in prosecution against an employee or an employer. In 2009, the Grand Rapids, Mich., area saw two employers and seven employees charged with crimes related to reporting.

“The biggest way to get yourself into trouble with I-9s is to play games with the documents,” Babcock said.

When a farm or business is selected for an audit, it will come in the form of a Notice of Inspection. In most cases, the notice will arrive in the mail. Babcock said not to worry if that’s the case.

“If you get it in the mail, relax,” he said. “If it’s not delivered in person, that’s a good thing. If you do get it in person, you should be concerned.”

The business will have three days to gather the required documents: I-9 forms, payroll lists, Social Security Administration notices, business licenses and unemployment records. Babcock recommends keeping I-9s separate and in three files: one for employees whose documentation doesn’t expire, one for forms with a Section 1 expiration date and one for people no longer employed by the firm. I-9 forms have to be kept for a minimum of three years, or one year past the last day of employment if the employee worked two years or longer. ICE typically looks at the last four years, but if there are documents on hand that go back further, agents can look at those as well, so destroying the forms after the mandatory period can eliminate some hassles for the farm.

Following an audit, ICE will send the inspected company one of six notices:

A Notice of Inspection Results is essentially a compliance letter that indicates everything is in order.

A Notice of Suspect Documents lets the business know that an employee appears to not be eligible to work in the United States. The employer will be required to get new documents from the employee and give them to the auditor.

A Notice of Discrepancies means ICE was unable to determine eligibility.

A Notice of Technical or Procedural Failure indicates that there was an error, usually in paperwork or recordkeeping, and the company has 10 days to come into compliance.

A Warning Notice means ICE has verified violations but has not instituted a monetary fine against the business.

A Notice of Intent to Fine means a fine will be levied against the company for verified violations.

If a farm uses seasonal labor, there’s a good chance it’s in the ICE database. If the farm is selected for an audit, the simplest way to avoid fines, or worse, is to keep good records.

First, make sure that the I-9 form is the most current version. The most current version went into effect Aug. 7, 2009, and has an expiration date of Aug. 31, 2012, in the upper right-hand corner. The new form has a few changes to it that also make it easy to identify. Section 1 now has four boxes in the self-identification section (citizen, non-citizen national, lawful permanent resident and alien authorized to work). If the third or fourth box is checked, then the Alien No. or Admission No. are required. Another change to the I-9 form is in Section 2, which is completed and signed by the employer. Section 2 may no longer include expired documents for List B or List C documents.

Second, ensure that every employee has filled out an I-9 form completely. For family owned businesses, this means making sure mom and dad have filled out the forms if they’re considered employees. Business owners and short-term workers – even neighbor kids that do some hired work – should have one on file as well. The date on Section 1 of the I-9 form should match the employee’s first day on the payroll.

Third, make sure the dates are correct. Section 2 must be filled out within three days of Section 1, and if the date is missing in Section 2 it’s considered a major violation because the whole form is not valid. Failing to fill out I-9 forms or knowingly leaving sections blank can establish a “pattern of practice” that can be used as evidence in a criminal trial. Do it once and it will result in a misdemeanor and probably a fine, Babcock said, but get caught three times and someone’s going to prison – the president of the company or the corporate officer.

Fourth, keep a log of any changes that are made to I-9 forms, and make changes in a different color to help the auditor identify changes. If a second form is filled out, which might occur with seasonal help, attach it to the previous form.

“If there’s an issue, we want to alert ICE. It’s much better to let the government know that you know about the problems and what you’re doing about them,” said Kim Clarke, in immigration attorney with Varnum, Riddering, Schmidt and Howlett.

The audit process may be daunting and seem adversarial, but Babcock recommends working with the ICE agent if deadlines can’t be met. If payroll is at the accountant’s office, the agent can extend the three-day deadline; and if many employees have to be terminated due to unauthorized status, a “rolling” deadline can be negotiated, Babcock said. In one food processing plant he audited, all 32 employees on the plant floor were unauthorized. The employer was able to get rid of a percentage every week until the payroll was clean.

“We know you can’t find replacement workers tomorrow,” Babcock said.

More than half of agricultural workers voluntarily told the federal government in a 2003 study that they probably weren’t authorized to work, and a 2001 study found that 98 percent of first-year workers weren’t authorized, so it’s likely that an agricultural producer employs or has employed unauthorized workers. Making sure that I-9 forms are filled out completely and training employees to recognize bad hiring practices will make ICE audits go smoother.

There are tools available, such as the e-Verify system, that let employers know if a new hire is authorized – but even e-Verify isn’t foolproof. Clarke told the growers to speak with a lawyer knowledgeable in immigration law to make sure everything is in order before the Notice of Inspection arrives.

For more information on e-Verify or to download new I-9 forms, click here.