Thursday, January 26, 2023

I-9 Immigration Audits Under Fire


by Emily Unglesbee, DTN Staff Reporter

LAWRENCE, Kan. (DTN) — Agricultural stakeholders are worried that a bad report card recently issued to the Department of Homeland Security's Immigration and Customs Enforcement (ICE) could hurt farm labor employers.

In February, Homeland Security's Office of the Inspector General released an audit of ICE's worksite inspection program, which reviews employers' I-9 forms — the forms that verify the identity and employment status of their workers. These inspections can generate warnings, fines and even prison time for employers who are found to be willfully and knowingly employing illegal workers.

The Inspector General's report criticized the large differences in the proportion of warnings to fines issued by the various ICE field offices around the country. It also spotlighted the tendency of some field offices to negotiate down fines for employers.

Among other recommendations, the Inspector General asked ICE to institute a more consistent nationwide protocol for field offices to follow when issuing fines versus warnings, and suggested that negotiating down fines is undercutting ICE's ability to enforce compliance.

ICE rejected these recommendations and noted that field offices must deal with the different socio-economic realities of their region and resources available, a stance praised by Frank Gasperini, executive vice president of the National Council of Agricultural Employers.

“We were pleased that ICE actually pushed back and said 'no'; our goal is to enforce the law and we think we're doing that very well,” Gasperini told DTN. “ICE has been very realistic and has said that the goal is compliance — the goal is to get the information right — not just to make money off people.”

As the report noted, ICE's worksite inspections, known as I-9 audits, have skyrocketed recently, generating $31.2 million in fines from more than 9,000 inspections between 2009 and 2012. In comparison, the previous five years had only generated $1.5 million in fines.

Because the rise in I-9 audits coincided with a major recession, many have noted that agriculture is one of the few industries bearing the brunt of these inspections.

“We were still in the midst of a long recession, and agriculture and the restaurant industry became the targets of (ICE) enforcement because the construction industry went away,” Gasperini said. “There weren't very many homes or commercial buildings being built, so those industries which used to be where they looked for violations went away, and suddenly the only place to find violations was agriculture and the restaurant industry.”

Despite the recent surge in I-9 audit fines and inspections, the Inspector General's report spotlighted certain ICE field offices that issued significantly more warnings than fines. For example, the New Orleans' ICE office only fined 5{0a3336b3da8cf935de4f3eb78fe29508c4b8b5ebd27d01af2d815614325d533e} of the employers it inspected over a three-year period, and issued warnings to 78{0a3336b3da8cf935de4f3eb78fe29508c4b8b5ebd27d01af2d815614325d533e}.

The report also criticized the Miami and Los Angeles ICE field offices for creating “an internal procedure to determine whether to issue a warning or fine,” which resulted in those offices only fining about 7{0a3336b3da8cf935de4f3eb78fe29508c4b8b5ebd27d01af2d815614325d533e} of the employers they inspected.

“Miami personnel said that when deciding whether to issue a warning or a fine, they considered the viability of the business and the character of the owners,” the Inspector General's report noted. “If the potential fine was substantial and threatened the employer's ability to remain in business, they would consider issuing a warning rather than a fine.”

As a result of these findings, the report asked ICE “to ensure consistent application of the worksite enforcement strategy administrative inspection process nationwide,” a request Gasperini said could destroy the agency's ability to be flexible with the many varied and diverse agricultural employers.

“In many cases, we're talking about smaller, more seasonal growers, who are not going to have a professional HR lawyer on staff to make sure everything is done exactly perfectly,” Gasperini said. “Many of these mistakes are paperwork violations that were not intentional. Sometimes more punitive action against employers is just not warranted.”

In its response to the report, ICE also argued that using the proportion of fines to warnings was not a “valid criterion” to evaluate the effectiveness of an inspection. In fact, the agency noted that when it revisited past inspections, it found “no significant difference in post-inspection compliance whether we issued a fine or a warning.”

The Inspector General's report also criticized ICE field offices for negotiating the total fines between 2009 and 2012 from nearly $53 million down to $31 million, which it worried could undercut compliance.

Brad Johnston, chief strategy officer and general counsel for Peri & Sons Farms, a large onion farming and packing company which operates in Nevada and California, argued that ICE's ability to negotiate with employers who have made minor or unintentional mistakes is a good thing.

“I think people in the field office need to be able to have some discretion to work with the employers on a case-by-case basis,” he told DTN. “I think they need to negotiate with the employers. You can fine an employer however much you want to fine them, but if they don't have the ability to pay it, then what's the point?”

The report also asked ICE to improve its data collection and to develop a system that actually monitors how successful the worksite inspections are at encouraging compliance, both of which ICE agreed to work on.

However, the issue of more consistent fines and warnings remains “open and unresolved” with Homeland Security's Office of the Inspector General.

See the Inspector General's full audit of the ICE worksite inspection program here:…

See the DTN story on the recent rise in I-9 audits here:…


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Posted with DTN Permission by Haylie Shipp



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