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Preparation Is Key for I-9 Audits

Jun 27, 2011

Here’s valuable advice on what to expect before – and after – a “silent raid” by Immigration and Customs Enforcement.

 
GregCofftaPhoto webBy Greg Coffta, Cornell University’s Northwest New York Dairy, Livestock and Field Crops team
 
More and more dairy farms across the country are feeling the chilling effect that ICE (Immigration and Customs Enforcement) can have on a business’s operations. 
 
Increasingly over the past 18 months, ICE has been conducting what is commonly known as a “silent raid,” instead of the traditional worksite raid on undocumented employees. The “silent raid,” or I-9 audit, involves a thorough inspection of the employer’s HR documents, principally I-9 forms and payroll information. The audit can lead to serious consequences for employers and employees alike.
 
Many farms that I work with have been the subject of an audit and its consequences, leaving them in a scramble to solve multiple problems simultaneously. Compliance with paperwork requirements is often the first problem. Employers will have to go through the paperwork with a fine-toothed comb to make sure it is free of violations.  
 
Another problem is ensuring that managerial staff is uniformly prepared if approached by an ICE agent. Finally, and perhaps the most enduring, is the problem of losing competent and experienced employees. Usually an audit will result in a list of employees who do not have valid documentation, and therefore have to produce the documentation or discontinue employment.
 
As ICE audits become more and more common, dairy farms should be preparing themselves for the inevitable. First, and of course, seek out legal counsel and representation that you can trust. Try to find a person who is experienced in legal matters regarding immigration and labor. This person can help you avoid the pitfalls that employers can commit when preparing for an audit. They could also help develop an on-farm protocol for employees to follow if an ICE agent visits the farm. If and when an audit does come to pass, you will surely want that person’s number on-hand.
 
It is good practice to have a meeting with all employees, especially managerial staff, to prepare them for dealing with ICE agents. All employees should be trained to tell ICE agents that the company has a very specific protocol for dealing with any matter of concern, and that the agent will have to wait to speak with the designated person. 
 
Along with that, have a designated person or two on staff who has been counseled by your legal representation. Employees shouldn’t be interviewed by, or give any documentation to, ICE without first conferring with the designated person. 
 
It is also a good idea to keep all I-9 forms and supporting documents in a separate, stand-alone folder. It is prudent to keep information for all farm employees, not just those you think may be in question, in this file. (On a side note, remember that an employer is not required to keep copies of documents that employees present for the I-9 form, but if you do it for one you should do it for all.)  If an audit does come to pass, the folder can be given to ICE for the audit.
 
Initially ICE will require the I-9 forms and supporting documents, but later it may request payroll information, a list of current employees, articles of incorporation and business licenses. Submitting paperwork that is not initially necessary for the audit, submitting paperwork without making a copy and/or giving ICE access to the all of documents in the office are all pitfalls that you should consider.
 
Along with the preemptive preparation of personnel and paperwork, it is important to know about the process of an I-9 audit and about your rights. Although no search warrant is required for an audit, ICE is required to give a notice three days prior to inspection. This will be presented in the form of a letter called the Notice Of Inspection (NOI).
 
After the audit, ICE will provide the results. Ideally, there will be no discrepancies, no violations, no citations and no problems, and the employer will receive a simple Notice of Inspection Results letter, which tells that the farm is compliant. 
 
Realistically, ICE will give out notices to the employer. The most common notices include:
·                     Notice Of Suspect Documents
·                     Notice of Discrepancies
·                     Notice of Technical or Procedural Failures
·                     Warning Notice
·                     Notice of Intent to Fine 
 
These different types of notices will indicate the severity of the problem and what the employer should do to comply. A Notice of Intent to Fine is perhaps the most severe, but a Notice of Technical or Procedural Failure could result in the discontinuation of many employees. 
 
For more detailed information on ICE’s process, visit this link, which is ICE’s own “Form I-9 Inspection” overview: http://www.ice.gov/doclib/foia/dro_policy_memos/formi9inspectionoverview.pdf.
 
In my experience, the loss of a handful of key employees is the most painful and dramatic of the consequences of an audit. After losing those employees, farms have struggled for months to find a way to replace them. Even a year after an audit, some farms are still feeling the effects of losing the employees because they have searched the limited human capital of the surrounding area and haven’t been able to find an adequate replacement. 
 
Although you’ll never know if an audit will come to pass, and therefore never know if you’ll need to replace employees fast, there are ways to be prepared for this eventuality. 
 
First, cross-train your employees and cross-train their positions. Having a team of malleable employees ready to shift into new responsibilities is extremely helpful in the short-term. Another preventative measure is to speak with another area dairy farm to set up a plan for “renting” employees for a short time. If you are going to lose a significant number of good employees, it’s likely you’ll have to use both of these strategies.
 
It is my hope that changes will soon be made that will enable a realistic program for dairy farmers to hire on a team of employees without having to worry about the issue of ICE, just as most other agriculture operations do with H2-A and other Department of Labor programs. For the time being, preparation is critical, as well as staying abreast on the issue both nationally and locally.
 
In his role as Bilingual Dairy Support Specialist for Cornell University’s Northwest New York Dairy, Livestock and Field Crops team, Coffta provides training, translations and meeting facilitation as well as management consulting in English to New York dairy farms. He obtained his bachelor’s degree from SUNY College in Brockport with a double major in Spanish and communications. He earned a master’s degree in education from the University at Buffalo. Contact Coffta at gjc53@cornell.edu.
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