Counterfeit work authorization documents are easily obtained and few employers can tell the difference. For the equine industry, this issue raises major concerns as it relies heavily on foreign labor. And, U.S. Immigration and Customs Enforcement (ICE) has shifted its focus from the employee to the employer. So, can employers be penalized for unknowingly employing undocumented workers?

By the Numbers

In 2010, ICE initiated a record 2,746 worksite enforcement investigations targeting companies that allegedly employed undocumented workers and issued a record 2,196 notices of I-9 inspection – more than quadrupling the 503 inspections in 2008.  Hitting a little closer to home, within the past year, three large Kentucky thoroughbred operations were visited by ICE. At least one of them faced monetary penalties for employing undocumented workers, and the other operations received warnings and were required to terminate all undocumented employees immediately. While the U.S. struggles to devise a comprehensive immigration reform strategy, ICE is wasting no time flexing its muscles in ways that target the companies responsible for employing undocumented workers.  This results in a significant disruption of business.

Fortunately, there are precautions that employers can take that will provide protection against potential government enforcement action and will greatly reduce the anxiety and uncertainty associated with these issues.

An Employer’s Best Defense – Form I-9

The I-9 is not just a form for verifying employment eligibility; it’s an employer’s best defense. Today’s enforcement policy is all about the employer.  ICE takes the position that if the employer is not completing its I-9s then it must not be verifying work authorization and therefore, could be knowingly employing undocumented workers.

Suppose a horse trainer hires a foreign national who entered the U.S. illegally and the employer is completely unaware of the employee’s immigration status.  During the hiring process, the worker presents fraudulent work authorization documents, which appear to the employer to be genuine, and claims to be a lawful permanent resident.  At no point in this scenario would the employer be expected to know that the worker is in the U.S. illegally.  After all, employers are not expected to be document experts.  Yet, if the trainer fails to complete an I-9 for the employee, and ICE subsequently determines that he or she is illegally in the U.S., the trainer will be deemed to have known all along.  In contrast, if the trainer properly completes the I-9 in this scenario, he or she will have an “affirmative defense” in the event of an ICE worksite investigation.

Employers are required to complete an I-9 for every employee hired after November 6, 1986.  After being hired, an employee has three days to complete Section 1 of the I-9 and present work authorization documents.  Within the same timeframe, the employer must complete Section 2 of the I-9 after inspecting the work authorization documents presented by the employee.  The employer must then retain its I-9s in a safe place in case ICE ever wants to take a look. 

In a typical worksite investigation, ICE will almost always find that the employer failed to ensure that certain employees properly completed Section 1 of the I-9 and that the employer failed to properly complete Section 2.  Such errors can result in a $110 fine for each improperly completed I-9.  For a small horse farm with two or three grooms that may not seem like much, but for larger equine operations with numerous employees, the fines can add up quickly.  An equally challenging byproduct of a worksite investigation is the loss of valuable employees who must be terminated once ICE has deemed them to be undocumented.  Few things are more devastating in the horse industry than losing good, quality workers. 

Be Proactive

For concerned employers, the best starting point is an independent, external audit of their I-9s.  This is not a self-audit, but rather, an audit conducted by outside counsel.  Experience has shown that those who are normally involved in the hiring process struggle to conduct an effective audit.  I-9 audits must be performed by someone who is knowledgeable and unbiased. Self-audits by untrained individuals can lead to mistakes (such as making changes to I-9s without initialing and dating them) that may make matters even worse.  In addition to reviewing the I-9s, the auditor also should assess the employer’s overall procedures for recruitment, hiring and termination with careful attention given to compliance with antidiscrimination and unfair immigration-related employment laws. 

E-Verify

Horse operations don’t have a lot of extra time to dedicate to additional administrative chores.  However, E-Verify should be given consideration as a useful tool and potential defense against alleged immigration violations.  E-Verify, which is free and available in all 50 states, is an electronic employment verification system linked to federal databases to help employers confirm the employment authoriza­tion of new hires.  Employers who participate in E-Verify still complete an I-9 for each employee, and they then use that information to create a “case” in E-Verify.  After creating the “case,” the employer receives a response from E-Verify either confirming the employee’s employment eligibility or indicating a tentative non-confirmation, which will need to be resolved within a prescribed time period.  

Most importantly, an employer who verifies work authorization under E-Verify has established a rebuttable presumption that it has not knowingly hired an unauthorized worker.  As a result, employers who utilize both the I-9 and E-Verify have available to them two separate defenses to a charge of knowingly or intentionally hiring an undocumented worker: (1) the rebuttable presumption created by using E-Verify; and (2) the affirmative defense for complying with the I-9 requirements.

Write it Down!

Employers should prepare a formal, written work authorization compliance plan if they don’t already have one in place.  Even if an equine operation is small, a written plan will always be useful to show good faith compliance with immigration laws.  In other words, if ICE comes knocking on your door, it won’t hurt to show them that your business has taken the time to prepare a written compliance plan. Now, make sure that your business actually complies with it! 

What Makes a Good Compliance Plan?

A good compliance plan should clearly define the hierarchy of supervision, responsibility and accountability for making compliance-related decisions.  It also should identify the roles of the various individuals involved in compliance decisions.  It also is important to clarify when managerial involvement is required and when involving legal counsel is appropriate.  The plan should address prohibited practices, including discriminatory documentary practices, citizenship status/national origin discrimination and retaliation.  Finally, it should clearly describe a plan of action for handling and responding to government activity such as ICE audits and raids. 

No Need to Lose Sleep

Uncertainty about the employment eligibility of foreign workers does not need to keep you up at night, nor does the verification process need to be intimidating.  Through proper planning, diligence and discipline, employers can eliminate the worry associated with immigration compliance and worksite enforcement investigations.  Rather than ignoring these important issues, employers should confront them head-on with a carefully prepared immigration compliance plan.