The days of massive government immigration raids on employers appear over. Instead, dairy farmers need to brace themselves for I-9 inspections.
"It's pretty clear from informant trends over the past three-four years that I-9 inspections are here to stay, and will be part of the reform package working its way through Congress," immigration attorney Erich Straub told listeners on Feb. 25 during the second segment of a World Class Webinar on immigration presented by Professional Dairy Producers of Wisconsin.
Those large-scale raids that were the predominant method of enforcing immigration law five years ago brought "incredibly bad publicity" for government, Straub noted.
Over the past 10 years, enforcement has also included fugitive operations, which target and seek to round up certain individuals. "Normally, if you cooperate, that's as far as it goes. It's important to realize that this is not a raid. It's normally one or two employees they are looking for. There is no ramification for the business unless there is a pattern."
Social Security No-Match letters are still used, but are not being used as an enforcement tool. "Most of you should not be seeing the volume of six or seven years ago," Straub said.
There has been a rapid rise in the number of I-9 audits over the past five years. "It has become immigration enforcement's tool of choice," Straub said. The number of inspections has soared from 503 in 2008 to 2,496 in 2011, while the total for fines has "jumped off the charts" from $26,560 in 2007 to $10.4 million in 2011.
"This is very serious. It is part of the landscape and for dairy producers, it is a part of your business. You need to be well-informed, with a plan and be sure to avoid fines," Straub said.
More than fines
Besides fines, inspections can result in criminal liability and the loss of a significant portion of a dairy's workforce almost overnight.
Civil penalties for a substantive or uncorrected technical violation run from $110 to $1,100. Employers who knowingly hire or continue employment face fines of $375-$3,200 for the first offense; $3,200-$6,500 for the second offense; and $4,300-$16,000 for the third offense.
If there are associated criminal penalties or a pattern or practice of knowingly hiring or continuing to employ, the fines can be up to $3,000 per worker and six months in prison. Conspiracy charges and racketeering statutes can also come into play.
"They are sending a message with the fines that they are going to enforce the law," Straub said. "It's important to realize, with these I-9 inspections, you can't just sit back and hope everything goes well. You need legal counsel."
If a dairy producer gets a visit from Immigration and Customs Enforcement (ICE), it begins with a NOI (Notice of Intent) of inspection and a subpoena. The time frame is 72 hours. "Do not waive the 72 hours", Straub underlined. "That's when you need to get in touch with legal counsel."
An I-9 inspection is seldom random. "In most cases when serving notice, they already have something on your operation, so there will almost certainly be a violation," Straub noted. "That being said, it doesn't mean you're in critical territory, but expect issues you are going to have to clean up."
Normally, the dairy producer is given 10 days to correct a technical and substantive violation, such as incomplete information on an I-9 form or the person filling out the I-9 form may not be who they say they are. In that case, the employee in question usually leaves.
Take practical steps
Straub advised dairy producers to take practical steps now to make sure they are prepared. "Get these business records in order so you can turn them over to your attorney," he said, listing Form I-9s, payroll records, Form 943 annual tax statements, any prior SSA No-Match letters, any federal contracts, business licenses and articles of incorporation.
Pull records on any subcontractors, someone who comes to the operation and brings his own workers with them; and temporary employment agencies. The government is looking for 'shell games' where employers are trying to hide their work force, Straub explained.
"Be aware you can't shield yourself from responsibility," he warned. "Clean it up now or you could get yourself in big trouble using this technique." Depending on the sophistication of the arrangement, criminal liability may be involved.
Keep files on employees and put any No Match letters into the file, he advised. "Generally, the easier you make it on the officers, the better. Show you are a good apple with a system in place to avoid bad actors, and do your best to comply."
In addition to never waiving the 72 hours and being cooperative, the keys to surviving an I-9 audit are not to answer any questions about the farm's I-9 forms, employees or hiring practices, and keep conversation to a minimum. "If you have an agent pushing you, be very clear that you have an attorney and he will provide the answers within 72 hours," Straub said.
It is important to hire an attorney. There are serious legal consequences and the ICE agents are experts, Straub said, so an attorney will serve as a communication shield. "You are giving evidence," he pointed out.
If someone comes onto a dairy operation, he should be taken to a specified place, preferably an office, to sit and talk there. "Do not allow him to go through the operation and talk to employees without a warrant," Straub said.
If an agent comes onto the dairy looking or a certain employee, escort him to the designated place and have someone fetch the person in question. "Definitely, be cooperative or they can make your life difficult, but do keep it contained," Straub advised.
According to fellow attorney and co-presenter Priya Bhatia, the common errors in section 1 of the I-9 form are incomplete information, no "A" number, missing employee signature or date, and not completing the preparer/translator information.
Employees must complete section 1 by their first day of work, she noted.
Common errors in section 2 are insufficient supporting documents and incomplete information, such as titles, issuing authority, document numbers, dates or employee signature.
Section 2 needs to be completed no later than the employee's third day of work. Originals must be presented, but employers cannot specify which documents the employee must present. Employers cannot accept expired documents, although there are exemptions as in the case of employment authorization documents and expired permanent resident cards that have been extended.
Employers must examine the documents, but they are not expected to be document experts. "The point is to make a good-faith effort," Bhatia said.
Only the individual who viewed the original documents can sign the I-9 form.
Common errors in Section 3 are unnecessary employer signatures and incomplete information. This section should be completed before the employee's work authorization expires.
Documents must be retained for three years from the date of hire or one year from termination, whichever is later. Be consistent, Straub said.
Photocopying documents is now advised, because it helps in case of future inspections and allows for correction of errors. "The most important advice here is, again, be consistent," Straub said.
If an I-9 form is lacking, one should be filled out immediately with the current date. "Be honest. It is better to have made a mistake than a pattern of lying," Straub concluded.
For more information, contact Straub or Bhatia at 414-224-8472. A "Handbook for Employers" (M-274) is available on the U.S. Citizenship & Immigration Services website at www.uscis.gov.