I-9 audits on the rise

Nov 22, 2013
by DTN

—Silent immigration raids plague farm labor employers

The Department of Homeland Security’s Immigration and Customs Enforcement’s (ICE) most recent wave of I-9 audits is a grim reminder of the frustrating status quo that lies ahead for the agricultural industry now that immigration reform is off the table this year, farm labor industry representatives told DTN.

Starting in early September, Dan Fazio, Director of the Washington Farm Labor Association, started getting the calls he knows all too well. Three companies in his area, two of which were agricultural businesses, had been among the 1,000 companies visited this fall by ICE agents, who handed out 72-hour notices of an audit of I-9 forms—the forms that verify the identity and employment status of workers.

“We call them ‘silent raids,’ because they come and do an ICE audit of your I-9s, and a lot of workers see the ICE folks, and they flee because they know their papers are bad,” said Frank Gasperini, Executive Vice President of the National Council of Agricultural Employers.

Since 2007, when ICE made only 250 such visits, the number of audits has soared to more than 3,000 in 2012. The total fines from 2009 to 2012 rose from $1 million to $13 million, according to ICE statistics released in July of 2012. During the audits, agents look for technical errors in an employer’s paperwork, which can result in fines ranging from $110 to $1,100. They also look for evidence of intentional employment of undocumented workers, which can send fines skyrocketing from $375 to $16,000.

As long as agricultural employers can prove they saw and recorded authentic looking identification from their workers—defined as a “good faith effort” by ICE—agents are unlikely to fine you, Gasperini told DTN. But employers then have only 10 days to either fire workers whose papers don’t pass muster in the audit or retrieve new documents from them.

“That’s a pretty Pyrrhic victory,* to lose your workers and know your cows aren’t going to get milked that day or your crop isn’t going to get picked,” Gasperini said. “You don’t have a violation to get fined on for your I-9s, but you’re going to lose your crop.”

Even using E-Verify, the internet-based program that verifies employment eligibility, doesn’t guarantee that an employer is safe from I-9 audits. A 2009 study by the U.S. Customs and Immigration Services found that, due to identity fraud, E-Verify inaccurately identified undocumented workers as legal 54 percent of the time.

The H-2A guest worker program can ensure a legal workforce, Fazio noted. His organization has helped between 40 and 50 Washington companies get certified to bring in 6,000 H-2A workers this year, but he says it has been “unbelievably hard” to do so. The H-2A program has been widely criticized for being cumbersome, inflexible and expensive, and with only 86,000 workers employed under it last year, the program supplies less than 5 percent of the farm labor in the country.

Fazio calls the I-9 audits “a ridiculous paper chase” that accomplish none of ICE’s purported goals to expel “criminal aliens” and protect the border. “The program is functionally ridiculous. It does absolutely nothing,” he said, noting that the undocumented workers aren’t deported, just kicked out of their jobs.

“So now you’ve got an employee that you trained, and that person walks across the street to work for your competitor, and you have to hire a new (undocumented worker) to replace the one that you lost.”

The I-9 raids have proven to be so disruptive to agricultural operations that Sen. Dianne Feinstein (D- CA) wrote a letter on Sep. 3 to then-Secretary of the Department of Homeland Security Janet Napolitano, urging DHS to stop targeting much-needed agricultural workers.

“Because the reality is that the majority of farm workers in the U.S. are foreign born and unauthorized—which is well known—I am afraid that this aggressive worksite enforcement strategy will deprive the agricultural sector of most of its workforce and cause farmers and related industries across the country significant economic harm, as well as driving up food prices for consumers,” Feinstein wrote.

Yet with the House of Representatives’ recent refusal to go to conference with the Senate’s immigration reform bill, agricultural employers must be prepared for more of the same, both Gasperini and Fazio warned. Both urged agricultural employers to do self-audits and seek out help if they are unsure how to properly fill out I-9 forms.

“There’s no guarantee that you won’t lose your workers at a horribly inopportune time, but the one thing that you can do is make yourself pretty certain that you’re not going to be fined or penalized with legal sanctions for not doing (I-9s) properly,” Gasperini said. “It’s a very thin shield and not a very good shield, but it’s the only thing they have.” — Emily Garnett, DTN

[*WLJ editor’s note: “Pyrrhic victory” refers to a victory which is so costly that it might as well be a defeat. The phrase is named after an ancient king who defeated the Romans in 279 BC, but at extensive loss of life.]