Problems remain, and comprehensive immigration reform appears out of reach for now. Here are tips for an immigration compliance plan.
By Anthony P. Raimondo, attorney
One of the greatest regulatory challenges faced by dairy producers is immigration law compliance. From a practical perspective, it is difficult, if not impossible, for dairy producers to avoid hiring undocumented workers.
The simple fact is that the labor pool that is available to dairies consists of a large percentage of undocumented workers. This is compounded by the fact that high-quality forged identification and immigration documents are readily available, and identity theft has continued to show significant growth.
Despite the Obama administration’s public “pro-immigrant” stance, this administration has aggressively enforced immigration laws, especially against employers. According to the Washington Post, the Obama administration has deported 1.5 more immigrants per month than the Bush administration did. The administration has focused heavily on employers, trading high-profile raids for under-the-radar audits of employers suspected of violating immigration laws.
A dairy in South Dakota that uses the H2A agricultural guest worker visa program was recently investigated by the U.S. Department of Labor (DOL). The dairy was concerned about hiring only legally authorized workers, so it brought in foreign workers through the H2A program. The dairy ran into to the problem that has prevented the dairy industry from taking advantage of H2A. The H2A program may only be used for seasonal agricultural work, and milking cows is not seasonal. Accordingly, the dairy was seen as violating the laws by trying to secure a legal source of labor. Federal law enforcement agents took a heavy hand in the investigation, and put a great deal of pressure on the dairy.
In late 2011, a Pennsylvania dairy had to fire almost a third of its workforce after a government audit revealed that the workers had submitted forged documents to obtain employment. That December, a New York dairyman was forced to plead guilty to a misdemeanor and pay a $3,000 fine for knowingly employing and harboring undocumented aliens.
Meanwhile, unscrupulous individuals solicit employers and workers with promises that they can “legalize” their status for a fee. Typically, they collect the fees and disappear, having delivered no benefit to the employees. The simple fact is that it is very difficult for most undocumented immigrants to adjust their status if they entered the country illegally, and employees and employers should consult with reputable immigration attorneys to determine their options.
Unfortunately, comprehensive immigration reform does not appear to be on the horizon. Dairy employers must continue to walk a fine line between immigration compliance, and discrimination allegations if they scrutinize applicants too closely. The key is to remember that the employer is not automatically liable any time an undocumented immigrant is discovered. The key is whether the employer knew (or should have known) that the individual was not legally authorized to work.
The critical components of an immigration compliance plan are:
1) Take your time. People often rush through the I-9 and do not take the time to complete the form properly. Make sure you have read the I-9 so you understand how it works, and take the time to make sure it is filled out properly.
2) Train. Anyone who processes I-9 forms should be properly trained to complete the forms correctly. The Handbook for Employers (Form M-274), available from the United States Customs and Immigration Service (USCIS) is a great guide for training. For example, most employers are not aware that they do not need to update the I-9 when an employee’s Permanent Resident Alien card expires.
3) Audit yourself. Periodically review your I-9s, and make sure they are being filled out completely and correctly. If a mistake is made, correct it and maintain documentation of the audit, the finding and the correction.
4) Don’t ignore what you know. Do not allow employees to change their names and Social Security numbers unless they provide documentation to support the change. A name change, Social Security number change or Alien Registration number change is highly suspicious, and should be backed up by official documentation showing that the change is legitimate. In addition, do not ignore questions that arise regarding employee Social Security numbers. Mismatch letters from the Social Security Administration are currently under suspension, but issues can arise from garnishments, judgments or even individuals claiming to be the rightful owner of an employee’s Social Security number. All employers should have protocols to deal with these situations. Generally, the primary step is to notify the employee of the issue in writing, and direct him or her to notify you of any updates to his or her information. But the response can vary based on the situation, so make sure to get advice from an expert in these situations. A mistake could result in fines, jail time or both.
Immigration will continue to be a challenge until Washington D.C. addresses what is, in many ways, a dysfunctional system. But until that time comes, dairy producers must educate themselves and institute policies and practices that will protect their businesses and families from what can be devastating consequences.
The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with Anthony Raimondo at McCormick Barstow LLP in Fresno, at (559) 433-1300.