IMMIGRATION AUDIT TIPS

     As an agriculture employer, you have certain things to think about.  The last thing you want to be worried about is whether your employees are legal, and whether you will be subject to a government audit of your paperwork.

     Over the past 18 months, there has been an increased focus by Immigration Customs Enforcement (ICE) on enforcing immigration laws against employers.  This focus represents a shift in immigration policy, and it has huge implications to you as an agricultural employer.  Since July of 2009, over 3,500 employers have received Notices of Inspection (NOI) and subsequently have been subject to a government audit of the I-9 and immigration documentation.  Last week the agency announced another 500 Notices of Inspections and audits of employers all over the United States, including companies in the Commonwealth of Massachusetts.  http://phoenix.bizjournals.com/phoenix/stories/2010/09/20/daily8.html

     The I-9 form is the most critical document for employer compliance.  Employers who mistakenly view the I-9 form as "just a piece of paper" may be in for a big surprise.  Namely, that one piece of paper can cost an employer thousands if not millions of dollars.  One error on the form is $1,100; so as an example, something as simple as forgetting to sign could cost your company.  If you have a file full of these kinds of simple mistakes, the results could be expensive for your small farm, and possibly result in the failure of your business.  Between July of 2009 and July of 2010, employers were fined over $38.5 million dollars for administrative errors on I-9 forms.  What would your fines total?

     The most important question to ask yourself is, "If ICE sent me a NOI today, would I be ready for an audit?"  Upon receipt of an NOI from ICE, you must have all files ready within 72 hours.  Below are some things to consider:

     1.  Are you using the most current I-9?  The updated version of the form has an expiration date of August 31, 2012.  Using the incorrect version will cost you $1,100 per form.  http://www.uscis.gov/files/form/i-9.pdf

     2.  Is the person completing the form trained in properly completing the I-9?

     3.  Is every one of your forms completed properly?  The government issues a good faith defense even if you have illegal workers, but your forms must be done correctly.

     4.  If you keep photocopies of identification, do you have one for every employee?

     5.  Do you have an I-9 form for every active employee, and do you retain the termed I-9's for three years?

     6.  If you use labor from another source, who complete the I-9?  You are still responsible for the I-9 for any violations unless you have an agreement which states otherwise.  The cost for each illegal worker is $3,500 with a maximum fine of $16,000 per worker.  This is in addition to the fines for I-9 violations. 

IMMIGRANT LABOR SERVES AS AN IMPORTANT RESOURCE TO FARMS.  THE MANY EMPLOYERS WHO HAVE DONE THE DUE DILIGENCE AND HAVE COMPLETED INTERNAL I-9 AUDITS HAVE BEEN ABLE TO MEET THEIR LABOR NEEDS SUCCESSFULLY.  TAKING THE SAME ACTION WILL ENSURE A GREAT OPPORTUNITY FOR FARMERS LOOKING TO MEET THEIR LABOR NEEDS. 

IF YOU WOULD LIKE SOME HELP IN THIS MATTER, BRENDA J. SMITH, J.D., FOUNDER AND CEO OF THE BRENDA J. SMITH COMPANY, A NATIONAL LEGAL CONSULTING FIRM, SPECIALIZES IN HELPING CLIENTS CREATE AND IMPLEMENT SUCCESSFUL EMPLOYMENT AND IMMIGRATION COMPLIANCE PROGRAMS.  THE FIRM REPRESENTS AGRICULTURE AND OTHER EMPLOYERS THROUGHOUT THE U.S. AND IS BASED IN SALEM, MA.  SHE CAN BE REACHED AT brenda@brendajsmithcompany.com; 978-594-8373 (o); http://www.brendajsmithcompany.com

-----This information was taken from www.agcareers.com      

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AAW members worked at their spring 2010 Mid-Year meeting to update Ag Labor's position papers which is the following:

2010 AAW Ag Labor Policy/Position Statements
AG LABOR
AAW believes labor-intensive agriculture in the U.S., especially fruits and vegetables, livestock and poultry, greenhouse and nursery, dairy and Christmas trees, could face a dire labor crisis. Estimates of 50-70% of the workforce is feared to lack legal status, and the costly and difficult H-2A program provides less than 3% of the workforce. Food is a strategic resource for the United States, and the stability of our domestically produced food supply and other agricultural industries is at risk.

AAW supports a guest worker program with a realistic  admissions level that will be a legal channel for workers to enter the country.
AAW supports a workable employment verification system where workers can be verified.
AAW supports a legal channel for the experienced workforce that is feeding America and sustaining our industries.
AAW supports strong border security.
AAW supports reform of the H-2A program which is covered in the AgJOBS legislation (Agricultural Jobs, Opportunities, Benefits and Security Act, H.R.2414/S.1038 [2010]).
AAW supports a secret ballot as the way for workers to vote for union representation.
 

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Here is the report submitted at the annual convention of American Agri-Women. 

American Agri-Women Convention
Salem, Oregon
November 12, 2009

AGRICULTURAL LABOR REPORT
- By Kathy Reavis
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Not a lot has changed on the ag labor scene as far as new legislation goes since March 2009 when the Department of Labor (DOL) announced the proposed suspension of a final rule (Bush Administration) implementing changes in the H-2A program. (H-2A program allows U.S. ag businesses to employ foreign workers in temporary or seasonal agricultural jobs.)

AAW still supports the AgJOBS bill, H.R. 2414 (which has 50 cosponsors) and S.1038. According to Craig Regelbrugge, Vice President of Government Relations for the American Nursery and Landscaping Association, the Obama Administration sees the Bush H 2-A regulations as one-sided and are headed to suspend and maybe rewrite them. This is why those wanting reform are pushing so hard on AgJOBS – finding a bipartisan middle solution is the only way forward.

A Notice was put in the Federal Register by the DOL that it is seeking comments on a Notice of Proposed Rulemaking concerning the process by which employers obtain a temporary labor certification from the Department for use in petitioning the Department of Homeland Security to employ a nonimmigrant worker in H-2A status. The DOL also proposed to amend the regulations so that workers are appropriately protected when employers fail to meet the requirements of the H-2A program. Comments were due October 5, 2009.

The “card check” legislation, aka the Employee Free Choice Act of 2009, H.R. 1409 (Miller) and S.560 (Harkin and Kennedy), would effectively deny workers their right to a secret ballot vote when deciding whether to be represented by a union. Right now there is no push on immigration bills as the Administration has been busy with other issues.

If you remember, there was a lot of talk the last couple of years about Social Security sending “no match” letters to employers to verify the validity of new hires’ Social Security (SS) numbers. Well, it seems there was/is a high false alarm rate and a limited ability to detect identity theft involving stolen or fraudulent numbers. Between June 2004 and May 2006, the Social Security Administration erroneously rejected 11% of foreign-born U.S. citizens and 1.3% of authorized foreign-born noncitizens, according to a report provided to Congress. For nearly three decades the government has been unable to develop adequate tools for identifying undocumented workers.

With no new immigration legislation, the federal government is collecting more fines and even starting to criminally prosecute business owners for immigration violations. Be sure and have the proper documentation on your I-9 forms. Some states are also requiring participation in the Federal E-Verify Program. Be sure and check whether that is the case in your state.