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What to Expect with an I-9 Audit

Mar 12, 2012

With ICE promising even more inspections in the future, here is a quick guide to preparing for an I-9 audit of your dairy.

 
Erich Straub   CopyBy Erich C. Straub, attorney
 
In 2009, the Immigration and Customs Enforcement (ICE) began increasing the number of Form I-9 audits of U.S. businesses. Nicknamed “silent raids,” this enforcement policy change targeted employers who hire undocumented workers. Since 2009, the number I-9 audits has increased over 300%. With ICE promising even more audits in the future, this column offers a quick guide to preparing for an I-9 audit.
 
Dealing with ICE
 
An I-9 audit will usually begin with ICE agents making an unannounced visit to a business to serve a Notice of Inspection (NOI) and subpoena for the production of business records. The NOI gives an employer 72 hours to turn over Form I-9s and other business documents to ICE. The business documents requested will likely include payroll records, Form 943 Annual Tax Statements, prior Social Security Administration “No-Match” Notices, a list of federal contracts, a list of subcontractors or temporary employment agencies, business licenses, and articles of incorporation and other business entity documentation.
 
The NOI gives the business the option of waiving the 72-hour period to produce the documents. This is an offer that only benefits ICE, and a business should never sign the waiver. A business owner and any supervising employee should be polite and cooperative but should engage in minimal discussion with the officers. Questions regarding employees, employment hiring practices or the immigration status of employees should never be answered at this stage. Instead, a business owner or supervising employee should politely state that they are not presently in a position to answer any questions, that an attorney for the business must be consulted, and that a response to the subpoena will come prior to 72-hour deadline.   
 
Do you need an attorney?
 
The answer is an unqualified “yes.” The stakes are very high for a business in an I-9 audit. While most investigations result in fines for I-9 “paperwork” violations, anyone in an audit has the potential for criminal liability. ICE officers are expert investigators, and as polite as they may seem, it is their job is to use every legal method at their disposal to determine whether your business has unauthorized workers and whether you knowingly have hired them. Retaining an attorney who is experienced with I-9 audits and immigration law allows you to level the playing field.  
 
Remember: A subpoena is an order to produce documents, not a request. The response can have significant legal consequences for a business, its owners and its employees. These consequences can include significant fines, criminal prosecution and deportation. An experienced attorney will usually conduct an I-9 audit, prepare the response to the subpoena, and handle all communications with ICE. The attorney will also explain an owner’s legal rights, assess risks and mitigate damage when possible.
 
After the investigation
 
Once ICE has reviewed the requested documentation, the employer will receive one of three responses for each employee. First, ICE may determine there is no problem with the documentation provided by the employee. Second, ICE may determine that the employee is unauthorized to work and that continued employment will result in fines or criminal liability. Third, ICE may determine that there are discrepancies in the documentation and a direct interview with the employee is necessary. Under the third scenario, the employer will be given a Notice of Discrepancies that must be given to the employee, and signed by both the employer and employee to acknowledge receipt.
 
Business contingency planning
 
Other than criminal prosecution, the most devastating consequence of an I-9 audit is that a business may not be able to survive the sudden loss of all or significant portions of its immigrant labor force. Under the second and third scenarios described above, a common reaction is for the employee to simply leave rather than be interviewed by ICE agents. This problem is particularly acute for dairy producers, who have animals that require daily care and cannot simply put up the “closed” sign for a few days while they hire a new workforce.
 
Whether actually experiencing an audit or not, producers should create a business contingency plan that anticipates the sudden loss of their entire immigrant workforce. Again, an attorney can be very helpful in assisting you in forming the plan. Unfortunately, the end result may well be an acknowledgement that the business will not survive, but it is better to have thought through such a devastating consequence in advance.
 
Erich C. Straub is an immigration lawyer who practices in Wisconsin and is listed in The Best Lawyers in America, SuperLawyers, and U.S. News and World Report’s Best Law Firms. Mr. Straub has spoken to audiences throughout the U.S. on immigration, and frequently advises Wisconsin Dairy Farmers on the topic. He has traveled Washington, D.C., to meet with elected officials regarding immigration reform. In 2008, the Milwaukee Business Journal described him as a “national leader on the federal immigration issue.” Contact him at (414) 224-8472 or erich@straubimmigration.com.
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