Feds step up enforcement on illegals
Photo/David A. Rodgers
Blueberry producer Jasper Wyman & Son, owner of this barren in Deblois, was recently fined for not having proper documentation proving its work force was in the country legally
An increased focus by U.S. Immigration and Customs Enforcement in the last year on companies that hire illegal workers has businesses taking a fresh look at how they verify employees’ eligibility to work in the United States.
In 2007, ICE shifted its focus to employers from employees to cut down on the hiring of illegal immigrants, placing the onus on businesses to obtain and verify documentation proving that their employees are both in the country legally and are eligible for employment in this country.
Russell Ford, an attorney who handles immigration issues at Portland law firm Verrill Dana, believes the focus has changed from national security to job security. The initial thought was eliminating jobs for illegals would decrease their numbers. In the current economy, enforcement is seen as “one thing the government can do to ensure that the people who are in the jobs are in them legally,” Ford says.
The focus on employers stems from the Immigration Reform Control Act of 1986, which is probably best known for providing amnesty to some 2.7 million immigrants in the United States illegally. Less well known is that the act made it a crime to knowingly hire illegal workers. The I-9 form, which all employees are required to fill out to verify their employment eligibility, was borne out of this act.
In 2009, using I-9 audits, ICE stepped up its enforcement of the law. As a result, in the last fiscal year, U.S. companies paid the price for non-compliance — to the tune of $6.75 million, according to a Boston Globe report.
Employers in tourism and agriculture — two industries that rely heavily on foreign workers to fill staffing needs — often employ seasonal, temporary and workers from staffing agencies. All three of these are particularly scrutinized with I-9 audits and investigations, Ford says.
Agriculture is an especially tricky proposition for two reasons: Companies have a limited opportunity to pick their crops and, as a result, the employment period for those hired to harvest is relatively short. This has traditionally led to the industry’s reliance on migrant workers, many of whom are not eligible for employment. Given these factors, Ford says agricultural businesses may have difficulty filling picking positions in the face of ICE’s focus on I-9s.
“It’s very difficult for these companies to be recruiting legal workers and ensuring compliance with I-9 requirements while trying to get their crops picked within a 30- to 60-day window,” he says. “It’s also very difficult for the worker, who may be constantly looking ahead about their next employment stint, and may not be thinking about what documents they need.”
Two Maine agriculture companies, both based in Milbridge, recently learned the hard way just how crucial it is to have employment paperwork in order.
Seafood processor Cherry Point Products was fined $2,475 for hiring two Honduran workers who lacked the proper paperwork. Just up the road, the iconic blueberry producer Jasper Wyman & Son also paid a fine, much higher than Cherry Point’s. Neither company returned repeated requests from Mainebiz for interviews before deadline.
Earlier this year, an ICE audit revealed a number of paperwork errors and the possibility that as much as one-sixth of the 1,200 people Wyman employed over a two-year period may have been in the country illegally. As a result, the company paid $118,000 — the stiffest fine in New England this year.
Cherry Point and Wyman’s are not alone, Ford says. Unfortunately, regardless of how careful and conscientious a company is, he says, it can still be susceptible to the type of paperwork errors that would lead to fines if uncovered by ICE.
“Even if your entire work force is legal, if their I-9s aren’t in order, you’re looking at a monetary penalty,” he says. “When I’m asked to audit clients’ records, across the board, at least half have minor paperwork violations.”
For this reason, Ford says, that one-page I-9 form, which looks pretty mundane and may be only one of 30-plus papers included in an employment packet, takes on an increased significance that may not be apparent to those responsible for collecting the forms and verifying identification. His advice? “Pay attention. If you’re sloppy, it can cost you; if you’re not sloppy, you can avoid a violation,” he says.
In response to its violations, Wyman signed up for E-Verify, a government-run service designed to help employers more accurately verify employees’ legal status, according to the Globe report. While the service is not 100% accurate, proponents claim that the 5% to 10% error rate is a small price to pay for strong assurance of legality, Ford says. Critics claim that error rate is closer to 15% and that any false positives are unacceptable.
Another potential fly in the ointment for employers is forgery. Over the years, improved technology has made high-quality falsified documents easier to produce and obtain. Many are so good that they pass the E-Verify test. Because of this, ICE applies a “reasonable person” standard to such documentation.
“There are some really good fakes out there, so you may miss them. And that’s OK,” Ford says. “The people at a company aren’t required to be ICE agents or government officials or go to high-tech measures to verify a document. The government is only going to penalize you for taking a document that looks so absurd that they can’t believe you took it.”
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