Inconvenient Truths

January 27, 2011 08:48 AM
Inconvenient Truths
Immigration compliance often involves hard choices for employers.


Your Mexican-born employee has worked for your dairy for 15 years. He’s a hard worker, a fine man. You’ve watched his children grow. He’s almost like family to you. But one day he tells you he’s an illegal immigrant. What should you do?

"You have to fire him," says immigration attorney Anthony Raimondo. "Under the law, once you know he is illegal, you have to let him go." 

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If you don’t, you could face criminal prosecution, including fines and even jail time. Your troubles could also result in a disrupted workforce and bring unwanted media attention.

One Iowa dairy producer found that out the hard way. In January, Kenneth Birker was convicted of knowingly employing three illegal workers at his dairy. His conviction followed a joint investigation by U.S. Immigration and Customs Enforcement (ICE), Homeland Security Investigations and local law enforcement.

The Iowa case underscores how critical it is to comply with immigration policies. "The Obama administration has made workplace audits a priority in its immigration enforcement policy, and has been auditing agricultural businesses, including dairies," Raimondo says.

In 2010, ICE, which enforces the nation’s immigration laws, conducted 2,200 workplace audits, twice as many as in 2008, Raimondo says.

These "silent raids" have replaced the "made-for-media" raids that featured large numbers of law enforcement agents at a work site, business shutdowns and images of distressed workers being deported and separated from their children.

"Instead, the government is concentrating on I-9 audits, with the focus on employers rather than employees," says Erich Straub, an immigration attorney in Milwaukee, Wis.

Despite your desire to help your workers, employers can’t turn a blind eye to the law, especially since workplace audits are expected to increase.

"You may want to help your illegal employee, but is it worth going to jail for?" asks Raimondo, who is based in California.

He reminds employers that it’s against the law for any person or business to hire an employee knowing that worker is not authorized to work in the U.S. Likewise, it’s unlawful to continue to employ someone knowing that person is not authorized for U.S. employment.

"A person who enters the country illegally cannot gain legal status," Raimondo says. "If you enter on a legal visa, overstay it and marry a U.S. citizen, it might be possible to adjust your status. But those who entered illegally must go home and re-enter legally."

An employer’s best defense is the I-9 process. This employment verification process is the first critical component of immigration compliance.

"I can’t emphasize enough the importance of the I-9," Raimondo says. "It’s the biggest area of inspections and where the most employer mistakes are made. Too often, I-9s are completed on autopilot. A lot of errors and bad habits—like not signing or fully filling out documents—repeat themselves."

Any such document deficiencies will end up being turned against the employer.

"Take the time to sit down with the hiring person on your dairy and an attorney to review your files and ensure that you’re complying with the law," says Ohio-based attorney Ryan Miltner. "That way, if an audit comes, you’re in compliance."

The law does provide a "safe harbor" provision for employers, Miltner says.

"It’s not the employer’s responsibility to enforce immigration law," he says. "It is the employer’s responsibility to make sure employees have the necessary documents to prove their eligibility to work."

The Obama administration’s tough stance on employers sends a clear message to the nation’s dairies. "In an environment where the status quo reigns, dairies have got to keep a careful eye on this dog—the I-9 audit—that’s been unleashed," Straub says.

Employers should do the best they can with their I-9 forms so that if a workplace audit occurs, they’re prepared. If you’re presented with an I-9 audit, you have 72 hours to prepare.

Keep in mind, Straub adds, that the majority of ICE visits to a farm or dairy are targeting a single employee who has an order of deportation or an arrest warrant related to a criminal charge.

"If ICE agents come to your dairy, ask them to show you their identification and any search or arrest warrant in their possession," Straub says. "If they have no warrant, ask them the specific purpose of their visit. You should not give ICE access to your farm unless they have a warrant that specifically authorizes it. If they do have one, you must allow them to enter."

In that situation, Straub advises that dairy producers call their attorney and making no further statements without their attorney’s presence.

"In most cases, a visit from ICE agents is not a raid," he says. "Even if agents don’t have a warrant, your best bet is to cooperate. Ask the agents to wait while you have someone go get the employee to speak with them."

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