This article previously appeared in Dairy Today, Feb 2011
Your Mexican-born employee has worked for your dairy for 15
years. He's a hard worker, a fine man. You've watched his
children grow. He's almost like family to you. But one day he
tells you he's an illegal immigrant. What should you do?
"You have to fire him," says immigration attorney
Anthony Raimondo. "Under the law, once you know he is
illegal, you have to let him go."
If you don't, you could face criminal prosecution, including
fines and even jail time. Your troubles could also result in a
disrupted workforce and bring unwanted media attention.
One Iowa dairy producer found that out the hard way. In January,
Kenneth Birker was convicted of knowingly employing three illegal
workers at his dairy. His conviction followed a joint investigation
by U.S. Immigration and Customs Enforcement (CE), Homeland Security
Investigations and local law enforcement.
The Iowa case underscores how critical it is to comply with
immigration policies. "The Obama administration has made
workplace audits a priority in its immigration enforcement policy,
and has been auditing agricultural businesses, including
dairies," Raimondo says.
In 2010, ICE, which enforces the nation's immigration laws,
conducted 2,200 workplace audits, twice as many as in 2008,
Raimondo says.
These "silent raids" have replaced the
"made-for-media" raids that featured large numbers of law
enforcement agents at a work site, business shutdowns and images of
distressed workers being deported and separated from their
children.
"Instead, the government is concentrating on I-9 audits, with
the focus on employers rather than employees," say Erich
Straub, an immigration attorney in Milwaukee, Wis.
Despite your desire to help your workers,
employers can't turn a blind eye to the law, especially since
workplace audits are expected to increase.
"You may want to help your illegal employee, but is it worth
going to jail for?" asks Raimondo, who is based in
California.
He reminds employers that it's against the law ofr any person
or business to hire an employee knowing that worker is not
authorized to work in the U.S. Likewise, it's unlawful to
continue to employ someone knowing that person is not authorized
for U.S. employment.
"A person who enters the country illegally cannot gain legal
status," Raimondo say. "If you enter on a legal visa,
overstay it and marry a U.S. citizen, it might be possible to
adjust your status. But those who entered illegally must go home
and re-enter legally."
An employer's best defense is the I-9 process. This employment
verification process is the first critical component of immigration
compliance.
"I can't emphasize enough the importance of the I-9,"
Raimondo says. "It's the biggest area of inspections and
where the most employer mistakes are made. Too often, I-9s are
completed on autopilot. A lot of errors and bad habits –
like not signing or fully filling out documents – repeat
themselves."
Any such document deficiencies will end up being turned against the
employer.
"Take the time to sit down with the hiring person on your
dairy and an attorney to review your files and ensure that
you're complying with the law," says Ohio-based attorney
Ryan Miltner. "That way, if an audit comes, you're in
compliance."
The law does provide for employers, Miltner says.
"It's not the employer's responsibility to enforce
immigration law," he says. "It is the employer's
responsibility to make sure employees have the necessary documents
to prove their eligibility to work."
The Obama administration's tough stance on
employers sends a clear message to the nation's dairies.
"In an environment where the status quo reigns, dairies have
got to keep a careful eye on this dog – the I-9 audit
– that's been unleashed," Straub says.
Employers should do the best they can with their I-9 forms so that
if a workplace audit occurs, they-re prepared. If you're
presented with an I-9 audit, you have 72 hours to prepare.
Keep in mind, Straub adds, that the majority of ICE visits to a
farm or dairy are targeting a single employee who has an order of
deportation or an arrest warrant related to a criminal
charge.
"If ICE agents come to your dairy, ask them to show you their
identification and any search or arrest warrant in their
possession," Straub says. "IF they have no warrant, ask
them the specific purpose of their visit. You should not give ICE
access to your farm unless they have a warrant that specifically
authorizes it. If they do have one, you must allow them to
enter." In that situation, Straub advises that dairy producers
call their attorney and making no further statements without their
attorney's presence.
"In most cases, a visit from ICE agents is not a raid,"
he says. "Even if agents don't have a warrant, your best
be is to cooperate. Ask the agents to wait while you have someone
go get the employee to speak with them."
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.