Agricultural and horticultural employers increasingly have come under the eye of the U.S. Immigration and Naturalization Service (INS) as a result of the Immigration Reform and Control Act (IRCA) of 1986. Intended to reduce the number of illegal employees in the U.S., the IRCA created the I-9 employment eligibility verification form, a requirement for all employers to have as part of personnel files for employees hired after Nov. 6, 1986.
INS began identifying major industries known to employ illegal alien workers, including agriculture and horticulture. They instituted tactics to audit these industries.
Often caught off guard, ag/hort employers suddenly found themselves facing INS agents during work site raids, I-9 audits or other INS enforcement strategies. Compliance with INS rules and regulations became a challenge with limited resources available.
Steve Schlecht, president and CEO of Gempler's Inc., Belleville, WI, became aware of the issue through his involvement with the National Council of Agricultural Employers. He discovered there was no in-depth, straightforward resource available to help agricultural and horticultural employers in this critical area.
"We felt it was essential to develop a comprehensive guide to help our customers stay out of trouble with these regulators and maintain effective businesses," he says.
Gempler's responded by developing "How to Avoid an INS Nightmare." Written by Barb Mulhern with the assistance of immigration attorney David C. Whitlock, the guide includes information on conducting an I-9 self-audit, completing the I-9 form and being prepared for INS enforcement strategies.
The Best Prevention The best prevention against the consequences of an I-9 audit or other INS enforcement action is accurate and clear information. But, Whitlock notes it hasn't been available until Gempler's INS guide.
"Calling INS for information can actually be dangerous. First, the quality of the advice may vary, depending on the person you talk to at INS; and secondly, a call may become a red flag for an INS audit," he says.
This has put employers in the position of being forced to contact the often costly private sector for information on IRCA compliance. About 75-85% of Whitlock's IRCA law practice focuses on advising clients on INS issues. The rest involves helping clients negotiate settlements after IRCA violations are alleged.
"How to Avoid an INS Nightmare" includes information on INS enforcement tactics, from paperwork audits to raids. Paperwork I-9 audits require INS to give three days' notice prior to arriving on-site to review employee I-9 related records. While the I-9 form may appear simple, Whitlock notes that its very simplicity leads to errors by well-meaning human resource managers.
"One common error is to ask merely for two forms of identification. By law, the employee must show documents establishing both identity and employment eligibility," says Whitlock.
Another common oversight is failing to monitor renewal dates for employment authorizations. Employers are required to reverify eligibility if an employee has presented a work authorization document with an expiration date.
Gempler's guide points out that an INS paperwork audit can be costly, with fines of up to $1,100 per defective I-9. It's rarely cost-effective to litigate once INS establishes non-compliance, Whitlock says. He recommends negotiating a settlement.
Raids Are More Costly More costly and disruptive to the ag/hort industry has been the INS use of raids. Raids usually occur when INS has substantial reason to believe an employer has hired a large number of illegal alien workers. In a raid, INS agents appear unannounced with a warrant giving them legal access to employees and the premises.
Unless the employee can provide immediate documentation as being "legal," he or she is taken from the premises by bus until legal documentation is provided. Deportation is possible.
"One problem in the ag/hort industry is that a significant percentage of legal workers come from countries without a due process system of law. The mere thought of contact with any government agent provokes fear, and the employer can lose this portion of his or her work force," Whitlock says.
Complying with IRCA became even more confusing for employers in 1990 when Congress voted to keep IRCA, rather than "sunset" the act, and to add document abuse provisions to reduce what appeared to be discrimination against legal immigrants, based on a report from the General Accounting Office.
The new provisions made it illegal for employers to ask to see more documentation of employment status than that required for the I-9. The provisions also stress that employers cannot reject a document that appears to be genuine. Caught in this paradox, employers often accept documents that may not be legal, only to be fined later during an INS audit.
To order "How to Avoid an INS Nightmare" for $35 per guide, contact Gempler's, PO Box 270, Belleville, WI 53508. Phone toll free 800/382-8473; fax 800/551-1128. Or, order it online at www.gemplers.com by entering Item No. 10545 in the search box of the home page.
Renee Reback is an Account Manager with Joan Collins Publicity, Madison, WI.
Here's an excerpt from Gempler's "How to Avoid an INS Nightmare" guide. The complete checklist appears in the guide.
* Determine who the investigators are. Ask for credentials. Ask for a business card. Confirm that they are with INS. If you're suspicious, call the agency to verify their identity.
* Find out why the investigators are there. A raid, which requires a search warrant, doesn't require advance notification. An I-9 audit requires three days' advance notice in writing but no search warrant. Some INS agents will present a subpoena (in conjunction with an audit), suggesting that you need to comply with it immediately. However, you are entitled to three days' advance notice, and INS cannot use a subpoena to shortcut that.
* Stay calm. Be polite. Belligerence only makes matters worse.
* A warrant is a court order giving the agent(s) permission to search your property. Resisting a warrant may be punished by contempt of court.
* Contact your attorney quickly if faced with an INS raid. Consult with an attorney versed in immigration law any time INS shows up at your door.
* Accompany the INS officers during their search. Take good notes. Make note of any unusual or disturbing behaviors, such as questioning only foreign-appearing workers.
* Don't allow any records to leave your property without making photocopies.