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The Top Things You Must Know to Successfully Pass an ICE Audit

The Top Things You Must Know to Successfully Pass an ICE Audit
by Brenda J. Smith, J.D.

As an agriculture employer, you have many certain things to think about. The last thing you want to be worried about is whether your employees are legal, and whether you will be subject to a government audit of your paperwork.

Over ther past 18 months, there has been an increased focus by Immigration Customs Enforcement (ICE) on enforcing immigration laws against employers. This focus represents a shift in immigration policy, and it has huge implications to you as an a agriculture employer. Since July of 2009, over 3,500 employers have received Notices of Inspection (NOI) and subsequently have been subject to a government audit of the I-9 and immigration documentation. Last week the agency announced another 500 Notices of Inspections and audits of employers all over the United States, including companies in the Commonwealth of Massachusetts.

The I-9 form is the most critical document for employer compliance. Employers who mistakenly view the I-9 form as “just a piece of paper” may be in for a big surprise. Namely, that one piece of paper can cost an employer thousands if not millions of dollars. One error on the form is $1,100,; so as an example something as simple as forgetting to sign could cost your company. If you have a file full of these kinds of simple mistakes, the results could be expensive for your small farm , and possibly result in the failure of your business. Between July of 2009 and July of 2010, employers were fined over $38.5 million dollars for administrative errors on I-9 forms. What would your fines total?

The most important question to ask yourself, is “If ICE sent me a NOI today, would I be ready for an audit?” Upon receipt of an NOI from ICE, you must have all files ready within 72 hours. Below are some things to consider as you ponder this question.:

  1. Are you using the most current I-9? The updated version of the form has an expiration date of August 31, 2012. Using the incorrect version will cost you $1,100 per form.
  2. Is the person completing the form trained in properly completing the I-9?
  3. Is every one of your forms completed properly? The government issues a good faith defense even if you have illegal workers, but your forms must be done correctly.
  4. If you keep photocopies of identification, do you have one for every employee?
  5. Do you have an I-9 form for every active employee, and do you retain the termed I-9’s for three years?
  6. If you use labor from another source such as a farm labor contractor, is the contract clear about who completes the I-9? You are still responsible for the I-9 for any violations unless you have an agreement which states otherwise. The cost for each illegal worker is $3,500, with a maximum fine of $16,000 per worker. This is in additition to the fines for I-9 violations.

Immigrant labor serves as an important resources to farms. The many agriculture clients I have had who have done the due diligence and have completed internal I-9 audits, have been able meet their labor needs successfully. Taking the same action will ensure a great opportunity for farmers looking to meet their labor needs.

Brenda J. Smith, J.D. is the Founder and CEO of The Brenda J. Smith Company; a national legal consulting firm specializng in helping clients create and implement successful employment and immigration compliance programs. The firm represents agriculture and other employers throughout the United States. The company offices are based in Salem, MA. She can be reached at; 978-594-8373(o);