ICE Plans to Increase Workplace Enforcement Actions, Update on Immigration Legislation
As reported recently (http://www.cnn.com/2017/10/17/politics/ice-crackdown-workplaces/index.html) the Acting Immigration and Customs Enforcement (ICE) Director Tom Homan announced that he has instructed Homeland Security Investigations (HSI), the investigative unit of ICE, to increase work site enforcement “by four to five times."
It’s important as an employer that you are following all existing labor laws for all your employees and are aware of your legal responsibilities and rights as an employer. All employers, including those in agriculture, are required to have a properly completed Form I-9, Employment Eligibility Verification (https://www.uscis.gov/i-9), for every employee. As an employer, you are prohibited, under the Immigration Reform and Control Act (IRCA), from “knowingly” hiring or continuing to employ undocumented aliens.
During the last few years ICE actions primarily focused on Form I-9 audits. Employers should be prepared for increased worksite enforcement to include Form I-9 audits by ICE. If ICE is planning to conduct a Form I-9 audit, a Notice of Inspection will be sent to the employer. To be proactive, employers can conduct an internal audit on all Form I-9s to ensure the information is complete and accurate.
Employers may see costly penalties levied if an ICE audit identifies “minor paperwork mistakes” or “technical errors.” If, however, the employer waits to make corrections on Form I-9s until after receipt of a Notice of Inspection, the fines will likely be steeper — as much as $1,100 for each “minor” technical violation. In addition, if an ICE Form I-9 audit results in a more substantive violation, such as an employer knowingly employing unauthorized workers, the fine can be up to $16,000 and the employer could face criminal action.
During the last few months the administration’s immigration actions have resulted in significant media coverage, and in some instances, reporters are seeking information on how these actions may impact agriculture. In at least one article a farmer was quoted as saying he is “knowingly employing an undocumented worker.” Although it seems obvious that this is intuitively not a good idea, to remove any uncertainty, this type of statement may be cause for ICE to conduct a Form I-9 audit or potentially a raid. We recommend that growers not respond to media inquiries on this issue, and instead direct inquiries to the California Avocado Commission.
Attached for your informational purposes is a comprehensive document prepared by the National Council of Agricultural Employers and AmericanHort that provides a very detailed overview of a Form I-9 audit; what would likely initiate an ICE raid and what to expect; employer rights; and much more.
Immigration Legislation Update
The House Judiciary Committee approved the Ag Guestworker Act (HR 4092) and the Legal Workforce Act (HR 3711) on October 26, 2017. Both pieces of legislation will now go to the full House for consideration and markups. Although the current Ag Act does not do enough to provide for the agriculture workforce needs, there was overwhelming support from agriculture industry representatives to see the legislation move out of Committee with the hope major improvements can be made on the House floor.
The Ag Act would create an H2C program that appears to be more flexible then the H2A program in housing and transportation requirements. During the Committee markup process an amendment was passed that would require a “touchback” component. This would require the current workforce to leave the country before being able to apply for an H2C visa application. This is problematic as many of the current workforce have been in the U.S. for years and don’t have a place to “touchback.” Plus, would they be willing to run the risk of going back to their country on the hope they will be able to return to the U.S. under the H2C program?
The Legal Workforce Act would mandate E-Verify for utilization by all U.S. employers. Without a workable guest worker program, E-Verify would be devastating for agriculture.
The Commission continues to work with Western Growers Association, Farm Bureau, the Agriculture Coalition for Immigration Reform and the Agriculture Workforce Coalition to achieve agriculture’s objectives on the critical issue of immigration. We remain focused on finding a solution that works for agriculture’s employees and employers.
THE INFORMATION CONTAINED IN THIS ALERT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE ON ANY SUBJECT MATTER. READERS ARE DIRECTED TO SEEK INDEPENDENT LEGAL COUNSEL WITH SPECIFIC QUESTIONS.