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Continue Compliance

08:12AM Nov 12, 2014

TP_024_T14150-a-1( Wyatt Bechtel )

Protect against an I-9 audit

Despite the uncertainty of immigration reform and guest-worker laws, producers who manage dairies and other farm businesses must protect themselves by complying with current labor protocols, says Anthony Raimondo, attorney with Raimondo & Associates in Fresno, Calif. 

Start by completing I-9 employment verification forms for 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 it.”

He emphasizes producers should follow these protocols:

  • Make sure 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 forms expose businesses to liability.
  • Complete 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 employment termination, whichever date is later.

Policy Shift. For the past three years, deportations have occurred at record levels. In 2013, more than 438,000 undocumented immigrants were removed by court order from the U.S., an increase of more than 28,000 from the previous year, U.S. Immigrations and Customs Enforcement (ICE) reports. Most were convicted criminals. There have been fewer arrests in the interior U.S., Raimondo says. 

The Obama administration has shown prosecutorial discretion in immigration enforcement in its 
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. They are then eligible for work authorization. In order to be considered, applicants are required to:

  • Have been under age 16 at the time of entry into the U.S. and be no older than 31 now.
  • Be in school, have graduated from high school or have served in the military with no criminal record.

DACA does not provide an individual with lawful status. 

“This is not a change in the law,” Raimondo points out. “It’s simply a decision not to deport. But the risk is that this policy can be revoked at any time.”

Nothing has changed since the 2012 announcement, Raimondo says. In late October, though, the union representing ICE agents announced the agency had ordered millions of blank work permits and related documents, Raimondo says. “That’s allegedly in preparation for President Obama to offer unilateral amnesty through executive action after the Nov. 4 elections,” he says.

Focus On Paperwork. Although workplace raids were the primary immigration enforcement tool of the Bush administration, I-9 audits have proven to be the priority tool of the Obama administration. 

These inspections focus more heavily on employers.

“I-9 audits have tripled since 2008,” Raimondo says. “In 2013,  there were 3,127 I-9 audits, resulting in fines totaling $15,808,365. Audits increased from 503 in 2007 to 2,496 in 2011. That pattern continues.” 

U.S. Citizenship and Immigration Services (USCIS) released its latest I-9 form March 8, 2013; it expires on March 31, 2016. 

USCIS also provides an employer handbook, titled “Instruction for Employment Eligibility” (OMB No. 1615-0047), which contains guidance on completing the I-9 form.

No one knows what is ahead for immigration reform, meaning producers need to be ready. Raimondo says it is likely that any new system will make e-Verify employment verification 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, noting 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,” Raimondo adds.

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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.