Protect yourself from immigration issues and future I-9 audits
Despite the uncertainty of immigration reform and guest-worker laws, dairy producers must continue to protect themselves by complying with current labor protocols, says Anthony Raimondo, attorney with McCormick Barstow LLP, in Fresno, Calif.
Compliance starts with completing I-9 employment verification forms for all new hires, including U.S. citizens.
"The I-9 form gives you a clean, clear way to comply with immigration protocols," Raimondo says. "It’s suicidal not to use them."
He emphasizes that dairy producers should follow these protocols:
- Make sure that all staff who process new hires are trained to properly complete the I-9 process.
- Periodically audit I-9s to make sure staff members are properly processing new hires. Incomplete or improperly completed I-9 forms will result in exposure to liability.
- Complete the forms at the same point in the employment process for all employees—after you have made the decision to hire the person.
- Be certain you keep I-9 forms on file for three years after the date of hire or for one year after termination of employment, whichever date is later.
The Obama administration has ramped up spending on immigration enforcement, shelling out $18 billion in fiscal year 2012. "That’s more than was spent by all other federal law enforcement agencies combined," Raimondo says.
Both 2012 and 2011 were record years for deportations. In 2012, nearly 410,000 undocumented immigrants were removed from the U.S., an increase of 14,000 from the previous year. Most have been convicted criminals. At the same time, there have been fewer arrests in the interior U.S., says Raimondo.
One area where the Obama administration has shown prosecutorial discretion in immigration enforcement is in the policy regarding "Deferred Action for Childhood Arrivals" (DACA).
On June 15, 2012, the Secretary of Homeland Security announced that people who came to the U.S. as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization. Those eligible under DACA must:
- Have been under age 16 at the time of entry into the U.S. and no older than 31 now;
- Be in school, have graduated from high school or have served in the military, and have no criminal record.
To this point, 430,000 DACA applications have been approved. Deferred action does not provide an individual with lawful status.
"This is not a change in the law," Raimondo says. "It’s simply a decision not to deport. But the risk is that this policy can be revoked at any time."
While workplace raids were the primary immigration enforcement tool of the Bush administration, I-9 audits have been the priority tool of the Obama administration. These inspections for paper violations focus more heavily on employers.
"There were 503 I-9 audits in 2008," Raimondo said. "There were over 8,000 in 2009."
U.S. Citizenship and Immigration Services (USCIS) issued a new I-9 form this past year, dated March 8, 2013, and it will expire on March 31, 2016. The I-9 forms dated Feb. 2, 2009, and Aug. 7, 2009, were accepted only until May 7, 2013. Now, only the March 8, 2013, form will be accepted.
USCIS has also issued a helpful handbook for employers titled M-274, which offers guidance for completing the I-9 form.
While no one knows what will come next for immigration reform, dairy producers need to be ready. Raimondo says that it’s likely that any new system will require the e-Verify employment verification system be mandatory.
Raimondo points to a 2009 survey by the National Milk Producers Federation that indicated 62% of the nation’s milk supply is produced by immigrant labor. "That number is low," he says.
"We need an answer" to the immigration problem, he says, because the consequences of not having immigration reform would be dire for the dairy industry.
"Eliminating immigrant labor would reduce the U.S. dairy herd by 1.34 million head; milk production would decline by 29.5 billion pounds and 4,532 dairy farms would go out of business," Raimondo says. "Retail milk prices would increase by an estimated 61%."
Immigration Compliance Protocol
California attorney Anthony Raimondo offers dairy producers these employment protocol tips:
Be certain you have completed I-9 forms for all new hires, including U.S. citizens.
Train staff who process new hires to properly complete the I-9 process. Then, periodically audit I-9s to make sure they are properly processed. Incomplete or improperly completed I-9 forms will result in exposure to liability.
Complete the forms at the same point in the employment process for all employees—after you have made the decision to hire the person.
Keep I-9 forms on file for three years after the date of hire or for one year after termination of their employment, whichever date is later.
Have a knowledgeable designated representative who is authorized to meet and talk with Immigration and Customs Enforcement (ICE) personnel. Make sure the representative knows when to contact the company’s attorneys and owner(s).
Educate your employees to refer ICE or other government inquiries to your designated company representative. All employees must be trained to inform ICE agents that the company has a standard protocol implemented by legal counsel, and that the agents need to wait for the designated person to follow through on that protocol.