Update on Immigration and Possible Enforcement Actions
As President Trump promised to do if elected, within the first few weeks of his administration a renewed focus on immigration enforcement actions has occurred. On January 25, 2017, President Trump issued an Executive Order, “Enhancing Public Safety in the Interior of the United States,” which was followed by the announcement on February 20, 2017, that Immigration and Customs Enforcement (ICE) will begin hiring an additional 10,000 agents. It will take a few months before these new agents are hired and trained, but it is a strong indication that President Trump is serious about taking increased enforcement actions. The current actions have focused on rounding up criminal illegal aliens, but as with previous administrations it’s a possibility that ICE employer raids will resume.
As such, it’s important that you are aware of your legal responsibilities and rights as an employer under existing law. 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.
In response to the administration’s immigration actions significant media coverage has resulted, 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 Commission.
Included here, and in the right-hand related content box, 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.
The time for a guest worker program that addresses agriculture’s needs has never been more pronounced. The Commission will continue 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. As we all know, a stable, skilled workforce is the cornerstone of California agriculture.
THE INFORMATION CONTAINED IN THIS ARTICLE 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.