In the agriculture industry, following I-9 to the letter is essential. The American Farm Bureau Federation estimates about half a million U.S. farm workers are undocumented.
Singer Farms was audited for its hiring practices in July 2009. The visit by U.S. Immigration and Customs Enforcement (ICE) was no walk in the park, but Singer passed inspection because its I-9 forms were in order.
ICE officials "showed up at our door and asked for all of our I-9 forms pertaining to current employees and anybody who had worked for us the previous two years," recalls Jim Bittner, a partner on a 500-acre tree fruit farm in Appleton, N.Y. "I had 88 forms, and they found only five where names and Social Security numbers didn’t match. Those five people hadn’t worked for me in more than a year," he says.
ICE agents did find approximately 30 small technical errors—simple mistakes, such as blanks left unfilled, maiden names not changed to married names and forms that had taken longer than the maximum three days from date of employment for completion. Farm management was allowed to correct these minor errors with no fines levied, and business continued as usual.
Bittner and others in agriculture believe their area of Upstate New York is under particular scrutiny because it lies on the border with Canada, so U.S. Border Patrol forces are present along with ICE. "Helicopters are regularly flying over my place," he says.
I-9 is King. "The I-9 is the law of the land, and you’d better be taking it seriously," says Bittner, who is also a former president of the New York State Horticultural Society. "We follow the manual (M-274) for the I-9 to the letter, so we came out OK. I would think the average farm wouldn’t fare so well."
It isn’t difficult to find examples of businesses that didn’t fare so well. Visits by ICE frequently result in workers being fired and owners penalized, no matter whether the businesses are related to agriculture. Brett Dreyer, worksite enforcement chief for ICE, says the agency’s two priorities for investigations are critical security areas, such as airports and nuclear power plants, and egregious employers.
"We don’t investigate based solely on the type of industry," Dreyer asserts. This differs from the tactics of ICE’s predecessor, the Immigration and Naturalization Service, which was dissolved in 2003 and targeted specific business sectors believed more likely to hire illegal immigrants.
"Now our investigations are based on intelligence information," Dreyer says. This can come from other agencies and sources, including employees and former employees. Yet, "the reality is that certain industries are more likely to have unauthorized workers," Dreyer says.
ICE believes there are about eight million unauthorized workers in all industries in the U.S. The American Farm Bureau Federation (AFBF) estimates that about half of the million or so workers employed by agriculture are undocumented. AFBF says the problem won’t be solved until meaningful immigration reform comes along, creating a dependable workforce for farmers and ranchers.
Dreyer says a business’ size or the number of people it hires has no bearing on whether it is investigated. "Constructive knowledge" is important to an investigation.
"We understand an employer is not a document expert," Dreyer says. "If a document appears to be genuine and the employer appears to be acting in good faith, he isn’t likely to be fined."
How to Verify. ICE recommends that employers use its IMAGE program, which provides education and training in hiring. IMAGE requires the use of E-Verify, an employment verification program.
- January 2011