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.
"If someone says they want a job and they present documents, I as an employer am not allowed to question those documents if they appear genuine," says Paul Schlegel, director of public policy for AFBF.
An employer must balance the need for proper papers with the need to not discriminate. "An
employer cannot specify what documents a prospective employee must present," Dreyer says. Those are noted on the back of the I-9 form.
"Employers can be fined for over-verifying or re-verifying when not required," says Jenifer Brown,
an attorney practicing immigration law with Ice Miller LLP, a firm based in Indianapolis. Employers sometimes ask Brown’s advice when they’ve discovered they have hired an illegal immigrant.
"The first question I ask is, how do you know?" Brown says. "We want to be sure we’re not doing
anything discriminatory or perceived as such. When you find out for sure that an employee is not
authorized for employment, you have to terminate them; your choices are very limited."
Brown tells her clients to conduct internal audits of their I-9 files to be certain all information is in order.
"Part of the effort on I-9 compliance should be making sure that immigration status of an employee is not discussed," Brown says. "We’re in compliance by properly and thoroughly
completing the I-9 form. If a supervisor has information that may rise to actual or constructive knowledge that an employee is illegal, he or she is obligated to inform management immediately."
Tips to Avoid an ICE Audit
New York orchard partner Jim Bittner is even more cautious now that he’s been through an Immigration and Customs Enforcement (ICE) audit. Here is his advice for avoiding hiring hassles:
- Be even more meticulous about following the rules. "Now I’m much more particular about making sure every box is checked and all dates are correct," Bittner says. "When you hire somebody, their I-9 has to be completed within three days."
- Have one person, such as an office manager, fill out all the forms for consistency. Doing so increases the chance that all new hires are treated the same and there is less chance of a discrimination claim.
- Store I-9 forms separately from other employment records. "You only want to give ICE what they’re asking for, which is the I-9 form," Bittner says.
- Purge files of older, outdated forms. Current rules state that the I-9 must be kept on all current employees. For terminated employees, employers must retain the I-9 file for three years after they are hired or for one year after they leave employment, whichever is later. "Why give ICE more paperwork than they ask for?" Bittner says.
- Urge other agriculture operations to take compliance seriously. "It’s the same law for everybody," Bittner says. "Don’t assume because you’re big or small, out in the open or on a back road that you’ll be treated differently."
- January 2011