Developing an Immigration Compliance Program for Employers in the Equine Industry

Transcription

1 Developing an Immigration Compliance Program for Employers in the Equine Industry Matthew J. Martinez Fennemore Craig Immigration I. INTRODUCTION Like other industries where manual labor is the norm, the horse industry relies heavily on foreign workers. On farms, ranches, racetracks, and at equestrian shows, it is not uncommon to hear a variety of foreign languages. Many of these workers are legally in the U.S., but as with any industry supported by foreign labor, the presence of undocumented workers is pervasive. Industry leaders have recently highlighted the industry s reliance on foreign labor, 1 and have expressed the usual frustration over the difficulty in staffing industry jobs. 2 Ask any equine business owner to describe some industry challenges and you re sure to hear about high veterinarian and farrier expenses, declining purses and track commissions, and the increasing cost of owning a horse in general. As the old saying goes, the only way to end up with $1 million in the horse business is to start with $10 million. The horse business is not an easy way to make a living for the owners or for the workers. However, talk to employers in the equine industry about the heart of their business, about what really makes their operation tick, and you ll quickly realize that one of the chief concerns is finding and retaining good help. It is a legitimate concern. Federal work authorization categories exist for a variety of positions within the equine industry, but for the positions associated with manual labor, long-term work authorization can be hard to obtain. The scarcity of practical work authorization options, combined with the allure of readily available jobs in the U.S., has created a situation where foreigners are tempted to obtain work authorization documents at all costs, legal or not. 1 Esther Marr, KY Immigration Proposal Worries Industry, Bloodhorse.com (February 1, 2011), quoting Jay Hickey, president of the American Horse Council: [I]ndustries like ours rely on foreigners to survive. Many of them have been here for many years, and our farms, ranches, breeders, and trainers rely on them they ve worked their way up to important positions. 2 Jere Downs, Employers say immigrants fill needed Louisville jobs even in tough economy, The Courier-Journal (February 12, 2011), quoting David L. Switzer, executive director of the Kentucky Thoroughbred Association: All of us are in a position of needing employees. We don t want to hire illegals... Openings for stable hands, grooms and night watchmen are extremely difficult to fill. A significant number of foreign born are working in our industry... At some of our farms, they have not had a Caucasian or African American apply for a job in eight years. Nobody applies. What are we supposed to do? 1

2 This creates a unique situation for employers. They welcome quality, foreign workers, but must be careful to confirm their immigration status. Although they are not immigration experts, employers are required to verify the identity and employment eligibility of new hires. But what if an employee presents seemingly valid work authorization but then turns out to be undocumented? Should the employer be penalized where there was no knowledge of unlawful status? Historically, employers in the horse industry haven t worried too much about the consequences of employing undocumented workers, and for good reason: there haven t been significant consequences, just minor fines that most employers have treated as a cost of doing business. However, that has all begun to change. The past few years have seen a dramatic shift in enforcement policy, with U.S. Immigration and Customs Enforcement (ICE) 3 now focusing attention on employers, as opposed to solely on the employees, in order to eliminate the root causes of illegal immigration. 4 However, there is no need for employers to panic; with a smart, thorough, workplace compliance plan, they can avoid the pitfalls experienced by the less prudent. II. I-9 AUDITS AND THE ROOT CAUSES OF IMMIGRATION On April 30, 2009, in a memo addressed to ICE Special Agents, Marcy M. Forman, Director of ICE s Office of Investigations, communicated what would be ICE s new enforcement policy. She announced that enforcement efforts focused on employers better target the root causes of illegal immigration. 5 She added: An effective strategy must do all of the following: 1) penalize employers who knowingly hire illegal workers; 2) deter employers who are tempted to hire illegal workers; and 3) encourage all employers to take advantage of well-crafted compliance tools. To accomplish these goals, ICE must prioritize the criminal prosecution of the actual employers who knowingly hire illegal workers because such employers are not sufficiently punished or deterred by the arrest of their illegal workforce. 3 Brief mention should be made here about ICE and its origin. The Homeland Security Act of 2002 created an executive department combining numerous federal agencies with a mission dedicated to homeland security. On March 1, 2003, the authorities of the former Immigration and Naturalization Service (INS) were transferred to three new agencies in the U.S. Department of Homeland Security (DHS): U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE). USCIS is responsible for most documentation of alien employment authorization, for Form I-9, and for the E-Verify employment eligibility verification program. ICE is responsible for enforcement of the penalty provisions of section 274A of the Immigration and Nationality Act and for other immigration enforcement within the United States. 4 Memorandum for Assistant Director Deputy Assistant Directors Special Agents in Charge from Marcy M. Forman, Director, Office of Investigations regarding Worksite Enforcement Strategy, April 30, (emphasis added). 2

3 The most important administrative tool is the Notice of Inspection (NOI) and the resulting administrative Form I-9 audit. The Form I-9 audit process will be utilized in both criminal and administrative investigations to identify illegal workers, including criminal aliens employed at a business. Civil fines, although not as key as criminal prosecutions, are an important part of an effective worksite enforcement strategy.... These fines provide a penalty when the evidence is not sufficient to support a criminal prosecution or as otherwise appropriate. 6 A. Bold, New Audit Initiative With the Form I-9 (hereinafter I-9 ) again occupying its traditional place at the center of ICE enforcement, ICE has unmistakably put its money where its mouth is. The resurgence of I-9 audits began in earnest in July 2009, not long after Director Forman s memo, when ICE introduced a bold, new audit initiative, signaling a distinct swing from the high-profile workplace raids that were common under the Bush administration. ICE issued Notices of Inspection to 652 businesses nationwide, and then stated that this new initiative illustrates ICE's increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce. 7 In conjunction with the 652 NOIs, ICE agents reviewed more than 85,000 I-9s and identified more than 14,000 suspect documents approximately 16 percent of the total number reviewed. As of the Fall of 2009, which was the last time ICE reported on the 652 NOIs, 61 Notices of Intent to Fine (NIFs) had been issued, resulting in $2,310,255 in fines, and 267 cases were being considered for NIFs. ICE closed 326 cases after businesses were found to be in compliance with employment laws or after businesses were served with a Warning Notice in expectation of future compliance. 8 Last year, on November 19, 2010, the Department of Homeland Security Assistant Secretary for ICE John Morton announced the issuance of NOIs to another 1,000 employers across the country associated with critical infrastructure. The 1,000 businesses served with audit notices were selected for inspection as a result of investigative leads and intelligence and because of their connection to public safety and national security See 652 businesses nationwide being served with audit notices today, U.S. Immigration and Customs Enforcement (July 1, 2009), available at 8 See ICE Assistant Secretary John Morton announces 1,000 new workplace audits to hold employers accountable for their hiring practices, U.S. Immigration and Customs Enforcement (Nov. 19, 2009), available at 9 3

4 Most recently, in an statement on February 18, 2011, Ross Feinstein, Public Affairs Officer for ICE, announced: U.S. Immigration and Customs Enforcement issued notices of inspection to 1,000 employers across the country today to alert those businesses that ICE will be inspecting their hiring records. The audits will assess whether the selected employers are properly verifying and documenting the work authorization status of newly-hired employees. Mr. Feinstein indicated that no one industry is being targeted nor is any one industry immune from scrutiny. These 1,000 inspections are consistent with the ever increasing trend. In fiscal year (FY) 2010, ICE initiated a record 2,746 worksite enforcement investigations, more than doubling the 1,191 cases initiated in FY ICE criminally arrested 196 employers for worksite-related violations, surpassing the previous high of 135 in FY ICE also issued a record 2,196 notices of inspection to employers, surpassing the prior year s record of 1,444 and more than quadrupling the 503 inspections in ICE issued 237 final orders documents requiring employers to cease violating the law and directing them to pay fines totaling $6,956,026, compared to the 18 issued for $675,209 in FY The total of $6,956,026 represents the most final orders issued since the creation of ICE in In addition, worksite investigations resulted in a record $36,611,320 in judicial fines, forfeitures, and restitutions. Finally, ICE debarred a record 97 businesses and 49 individuals preventing unscrupulous companies from engaging in future business with the government. 10 The increased level of inspections and fines sends a clear message that ICE is committed to holding employers responsible, and that this new initiative is not just an isolated, trivial change in protocol. This is a major shift in policy. Priority number one in worksite enforcement actions is to target employers who knowingly employ unauthorized foreign nationals. ICE has not said it will be targeting the equine industry specifically, but the policy statements made to date suggest that certain industries will garner more attention than others. Among them will likely be those that traditionally rely on foreign labor. We can expect ICE to focus its efforts on sectors that will yield more bang for the buck. B. Examples of I-9 Audits, or Silent Raids The equine industry has been able to mostly avoid these administrative investigations or so called silent raids. Nevertheless, the industry is not totally immune. Recently, Mary Lee Butte, President and CEO of Blue Grass Farms Charities, shared that within the last year, three large Kentucky Thoroughbred operations had been visited by ICE. At least one of them faced monetary penalties for employing undocumented workers, and 10 Statement of Kumar Kibble, Deputy Director, USCIS, regarding Hearing on Worksite Enforcement before the U.S. House of Representatives Committee on the Judiciary Subcommittee on Immigration Policy and Enforcement (Jan. 26, 2010). 4

5 the other operations received warnings and were required to terminate their undocumented employees. 11 Similar cases have garnered considerable attention from the media, namely: Chipotle Mexican Grill Inc. In January 2011, Chipotle Mexican Grill Inc., which owns and operates nearly 1,100 restaurants around the country and employs 25,000 people, had the I-9 forms of roughly 50 restaurants in Minnesota audited. ICE found numerous "suspect documents," and Chipotle was forced to terminate a significant number of employees in 50 Minnesota restaurants. The exact number has not been disclosed but it s believed to have been around Abercrombie & Fitch. In September 2010, Abercrombie & Fitch, the clothing retailer, was fined $1.04 million for failure to properly verify authorization of its workers after using an electronic I-9 system that does not meet DHS requirements. The infraction resulted in 100% non-compliance. What is interesting, and most telling about ICE s motives, is that no unauthorized workers were found among the company's employees. ICE is clearly focused on strict I-9 compliance. 13 Krispy Kreme. In July 2009, ICE conducted an I-9 audit of Krispy Kreme after receiving a tip from the local Sheriff's Office indicating the company had employed dozens of illegal aliens at one of its doughnut factories in Cincinnati. In September 2007, ICE issued a notice of Intent to Fine. The fine was settled in 2009 for $40,000 and roughly 25 employees were terminated. 14 C. The Origin of the I-9 The path to a better understanding of ICE s enforcement initiative begins with a review of the origin of the I-9. Recall that before 1986, there were no laws governing the hiring of undocumented aliens. The concept of work authorization did not exist, except as a status violation for foreign nationals. It wasn t until November 6, 1986, when Congress enacted the Immigration Reform and Control Act (IRCA), that employers were required to verify the identity and employment eligibility of their employees (via the I-9), and criminal and civil sanctions for employment related violations were created Esther Marr, Key Issues Discussed at KY Immigration Forum, Bloodhorse.com, March 9, Steve Alexander, Chipotle fires hundreds, draws protest, Star Tribune (January 20, 2011). 13 BNA Workplace Immigration Report, Abercrombie & Fitch to Pay Over $1 Million In Fines After I-9 Audit of Michigan Stores, 4 WIR 537, 9/20/ See Krispy Kreme fined after I-9 audit, U.S. Immigration and Customs Enforcement (July 7, 2009) available at 5

6 The goal of IRCA was clear: to eliminate the magnet of employment that Congress believed was attracting undocumented aliens to the U.S. 15 Section 274A (b) of the Immigration and Nationality Act (INA), codified in 8 U.S.C. 1324a (b), requires employers to verify the identity and employment eligibility of all individuals hired in the United States after November 6, C.F.R. 274a.2 designates the Employment Eligibility Verification Form I-9 as the means of documenting this verification. Employers have since been required by law to complete an original I-9 for every new employee hired after November 6, 1986, and to maintain them for inspection. In the case of former employees, retention of I-9s are required for a period of at least three years from the date of hire or for one year after the employee is no longer employed, whichever is longer. 16 D. I-9 Affirmative Defense While the I-9 documents employment eligibility, it also serves as an employer s defense against an allegation of knowledge of an employee s illegal status. For example, suppose a horse trainer employs an individual who entered the U.S. illegally. The individual then obtained very authentic looking yet fake immigration papers, which he presented in order to secure employment, and the trainer innocently relied on them. If the trainer fails to complete an I-9 for the foreign national and then ICE subsequently determines that the individual is undocumented, the trainer will be deemed to have known all along as a result of his failure to complete an I-9. In contrast, if the trainer properly completes the I-9 and the individual is later discovered to be without work authorization, the trainer has an affirmative defense. III. ANATOMY OF AN I-9 AUDIT What can the typical equine business owner expect if selected for an audit? On December 1, 2009, the U.S. Department of Homeland Security published an I-9 Inspection Overview, 17 providing a clear explanation of the procedure and its underlying rationale. A. The Notice of Inspection The I-9 audit starts with the service of a Notice of Inspection (NOI) upon an employer requesting its I-9s. ICE allows 3 business days to present the I-9s. ICE will often Fact Sheet, Form I-9 Inspection Overview, Office of Public Affairs, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, (December 1, 2009). 17, attached as APPENDIX A. 6

7 request that the employer provide additional documentation, including a copy of the payroll, list of current employees, Articles of Incorporation, and business licenses. 18 ICE agents or auditors then conduct an inspection of the I-9s for compliance. When technical or procedural violations are found, 19 an employer is given ten business days to make corrections. An employer may receive a monetary fine for all substantive and uncorrected technical violations. Employers determined to have knowingly hired or continued to employ unauthorized workers 20 will be required to cease the unlawful activity, may be fined, and in certain situations may be criminally prosecuted. An employer found to have knowingly hired or continued to employ unauthorized workers could be subject to debarment by ICE, meaning it could be prevented from participating in future federal contracts and from receiving other government benefits. 21 The NOI is the first of many notices the employer may receive. During the life of an I-9 audit, the employer may, depending on the investigation, also receive other notices that also require immediate attention, such as the following: Notice of Suspect Documents: Advises the employer that based on a review of the I-9s and the documentation submitted by the employee, ICE has determined that the employee is unauthorized to work and advises the employer of the possible criminal and civil penalties for continuing to employ this individual. ICE provides the employer and employee an opportunity to present additional documentation to demonstrate work authorization if they believe the finding is in error; Notice of Discrepancies: Advises the employer that based on a review of the I- 9s and the documentation submitted by the employee, ICE has been unable to determine his/her work eligibility. The employer is instructed to provide the employee with a copy of the notice, and to give the employee an opportunity to present ICE with additional documentation to establish his/her employment eligibility; Notice of Technical or Procedural Failures: Identifies technical violations identified during the audit and gives the employer 10 business days to correct the forms. After 10 business days, uncorrected technical and procedural failures will become substantive violations; See INA 274A(b)(6)(B) (8 U.S.C. 1324a(b)(6)(B)). See INA 274A(a)(1)(a) or (a)(2) (8 U.S.C. 1324a(a)(1)(a) or (a)(2)). See Fact Sheet, Form I-9 Inspection Overview, supra. 7

8 Warning Notice: Issued in circumstances where substantive verification violations were identified but circumstances do not warrant a monetary penalty and there is the expectation of future compliance by the employer; and Notice of Intent to Fine (NIF): May be issued for substantive, uncorrected technical, knowing hire and continuing to employ violations. 22 B. Penalties Monetary penalties assessed by ICE from an I-9 audit can be substantial, depending on the type of violations listed in the NIF. According to the civil monetary penalty schedule, fines for knowingly hiring and continuing to employ undocumented workers range from $375-$16,000 per violation, with repeat offenders receiving penalties at the higher end. Penalties for substantive and uncorrected paperwork violations, including failing to produce an I-9, range from $110-$1,100. The agent or auditor will divide the number of violations by the number of employees for whom an I-9 should have been prepared to obtain the violation percentage. Therefore, penalties increase depending on whether it is the employer s first, second or third (or more) offense. 23 In determining penalty amounts, ICE considers five factors, which ICE uses to enhance or mitigate recommended fines by five percent: (1) Size of the business; (2) Good-faith effort to comply; (3) Seriousness of violation; (4) Whether the violation involved unauthorized workers; and (5) History of previous violations. 24 C. Technical v. Substantive Violations Whether an I-9 violation is technical or substantive depends upon the seriousness of the error, and specifically whether or not it could have led to the hiring of an unauthorized alien. For technical violations, an employer is provided with at least 10 business days to correct the violations after notification of the violations. If the employer corrects the violations within the designated time period, it will generally be deemed to be in compliance. If the technical violations cannot be reasonably corrected, the employer will need to provide ICE with a written explanation as to why the violations cannot reasonably be corrected. If ICE determines the explanation is reasonable, the technical ; see also INA 274A(e)(5) (8 U.S.C. 1324a (e)(5)). 8

9 violation will not be considered a violation subject to a NIF. Substantive violations, on the other hand, may not be corrected. 25 One of the worst mistakes an employer can make is to fail to treat a Notice of Inspection from ICE and the accompanying audit seriously. Employers should be alert and responsive, not allowing the usually personable ICE agent to lull them into a false sense of informality. Quick, decisive action is required to avoid a Notice of Intent to Fine. An ICE Special Agent conducting a review of our client s I-9s remarked recently that many employers do not think that ICE is serious and they do not even attempt to respond to a NOI. Even more surprising, explained the agent, are the employers who continue to employ workers after ICE has deemed them to be unauthorized. Such employers risk automatic fines and probable criminal charges. IV. DEVELOPING AN IMMIGRATION COMPLIANCE PROGRAM Despite the potential liability, if employers take the time to carefully establish and implement a solid compliance plan, they can steer clear of the penalties and paralyzing disruptions resulting from immigration-related violations. Employers who heed the following important tips will be able to navigate through the murky labyrinth of ICE enforcement and avoid costly and unnecessary distractions. A. Start with an External I-9 Audit The best starting point is an independent, external audit of the company s I-9s. Note that this is not a self-audit, but rather an audit conducted by outside counsel. Experience has shown that representatives of the company who are normally involved in the hiring process struggle to conduct an effective audit. An I-9 audit cannot be superficial, and therefore requires an individual who can be direct and unbiased. The individuals who regularly participate in the company s I-9 process have a tendency to take a softer approach when they are reviewing their own work. Self-audits by untrained individuals can also lead to mistakes (such as making changes to I-9s without initialing and dating them) that may actually make matters worse. During these independent audits, counsel should take advantage of the opportunity to train the company representatives responsible for new hires and I-9 completion and to provide critical feedback to all who participate in the verification of employment eligibility including the owner, president, and other managers and executives who have oversight responsibility. Armed with such knowledge, company representatives may then conduct periodic reviews of their hiring processes more effectively. An effective I-9 audit will not only focus on the I-9s themselves, but will also assess the employer s overall procedure for recruitment, hiring and termination. Careful attention should be given to compliance with antidiscrimination and unfair immigration-related 25 Guide to Administrative Form I-9 Inspections and Civil Monetary Penalties, U.S. Immigration and Customs Enforcement (November 25, 2008). 9

10 employment laws. The attorney managing the audit should identify the individual(s) accountable for proper I-9 completion, specifically determining who will personally inspect the new hire s employment documents and sign Section 2 of the I-9 (Employer Review and Verification), making sure the process is centralized and understood. The attorney should also determine whether copies are being made of the documents presented, as well as how and where the I-9s (and copies if applicable) are stored. 26 An audit should always include an evaluation of Sections 1, 2 and 3 of the I-9, keeping the following rules in mind: Section 1: Section 1 must be completed by the employee on or before the first day of employment. The employee must fill out, sign and date this portion of the form, but the employer is responsible for making sure that this section is filled out completely. Section 2: Section 2 must be completed, signed and dated by a company representative on or before the end of an individual's third day of employment. 27 The employee must either present a List A document, which provides proof of identity and employment, or both a List B, identity document, and List C, employment authorization document. The company representative must not request or suggest a specific document to verify employment eligibility or identity. Rather, the employee may choose from the list of documents noted on the back of the I-9 form. The company representative must review original documents provided by the employee for purposes of completing this section, except as noted in the I-9 form directions. Each relevant line in Section 2 must be fully completed and include the document title, issuing authority, number, and expiration date, if applicable. Section 3: To re-verify an employee's work authorization, the company representative may complete Section 3 on the bottom of the original Form I-9, or propose a new I-9, attaching it to the initial I-9. I-9 Corrections. The audit is the appropriate time to make correction to deficient I-9s, under the supervision of counsel. Keep in mind that only an employee can correct an entry in Section 1, and only a company representative can correct an entry in Section 2 or 3. If a correction needs to be made, it should be done with a different color pen by writing in the correct information and crossing out the incorrect information, and then initialing and dating the correction. The company representative must not throw out the old I While the I-9 is only one page long and seemingly simple to complete, correctly filling it out can be tricky. To help simplify the process, earlier this year the USCIS released a revised Handbook for Employers, or M-274,26 which employers should consult often. 27 ICE has clarified that if an employee starts work on Monday, the employer has until Thursday to complete Section 2. 10

11 Corrections are often a subject of much consternation, as no employer wishes to be accused of somehow inappropriately tampering with the process, and in many cases corrections are being made in the 11 th hour, usually after a Notice of Technical Deficiencies with ICE looking over the employer s shoulder. ICE has indicated that the most important issue is whether or not the employer s actions are reasonable. To determine whether an employer acted reasonably, any corrections need to make clear both what happened and when. Any notes made on the I-9 need to show that the employer acted reasonably. If an employer makes a correction during an internal audit, then that should be indicated on the corrected I If there are technical violations, the employer will be given an opportunity to correct them. However, ICE views the good faith of an employer differently when corrections are made after a Notice of Inspection, in which case ICE will be tougher. ICE has indicated that it would look favorably upon a pre-noi correction in some situations where the same correction might lead to a fine if the correction is made post-noi. The only violations that the employer will be offered an opportunity to correct by ICE post- NOI are technical ones. Substantive violations concerning timeliness cannot be corrected, no matter when the correction occurs. ICE wants to be firm, but fair. 29 Nonetheless, good faith post-noi corrections are recommended. B. Develop a Formal, Written Compliance Plan Written Plan. Employers should prepare a formal, written compliance plan if they don t already have one in place, or carefully review the one they have. Even if an equine operation is small, a written plan will always be useful to evidence good faith compliance with immigration laws. A good compliance plan should contain the following: a. Clearly defined hierarchy of supervision, responsibility and accountability for making compliance-related decisions; b. Detailed descriptions of the roles of the various individuals involved in compliance decisions; c. Established timeframes for completion of specific actions, such as when the I- 9 must be completed and by whom; d. Direction as to when managerial involvement is required and when inside/outside counsel is appropriate; 28 Summary of AILA-ICE Worksite Enforcement Meeting, November 22, 2010 (with USCIS in attendance to observe)

12 e. Summary of state and federal immigration laws, including document retention requirements, maintenance of lawful immigration status provisions, and summary of penalties; f. Clear description of hiring/firing policies and procedures and compliance with anti-discrimination and prohibited practices, including discriminatory documentary practices, citizenship status/national origin discrimination, and retaliation; and g. Plan of action for handling and responding to government activity such as ICE audits and raids. Training. Once the compliance plan is securely in place, it is critical that all personnel involved with employee hiring be trained on the compliance requirements. All such personnel should be very familiar with the plan s provisions and be equipped with the tools necessary to implement them. Reminders/Reverification. A compliance plan will do an employer little good if the lawful status of its foreign workers is allowed to expire. Employers should maintain a tickler system to monitor expiration dates listed on employee I-9 forms and allow for enough time to verify employee work authorization. Whatever reminder system is adopted should indicate the expiration date of the employee s work authorization and do so with ample forewarning in order to obtain an extension of the employee s employment authorization document. C. Consider E-Verify It is understood that many horse operations simply don t have a lot of time to dedicate to additional administrative chores. However, one administrative task should be given careful consideration as a useful tool and potential defense against alleged immigration violations: E-Verify. To improve the accuracy and integrity of the employment eligibility process, the USCIS operates an electronic employment verification system called E- Verify. 30 E-Verify (free and available in all 50 states) provides an automated link to federal databases to help employers confirm the employment authorization of new hires. Employers who participate in E-Verify are required to complete Form I-9 for each newly hired employee in the United States post enrollment. After completing an I-9 for a new employee, the employer must create a case in E-Verify that includes information from Sections 1 and 2 of the I-9. After creating the case, the employer will receive a response from E-Verify regarding the employment authorization of the employee either confirming the employee s employment eligibility or indicating a tentative 30 Handbook for Employers, M-274, U.S. Citizenship and Immigration Services, Part One, p. 35 (1/05/11). 12

13 nonconfirmation of the employee s employment authorization which will need to be resolved within a prescribed time period. Benefits of E-Verify Employers in the equine industry will have to decide whether E-Verify is right for their organization. In some states, including Arizona, employers don t have a choice, as E- Verify is mandated under state law. 31 E-Verify is also mandatory for employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause. Most importantly, an employer who verifies work authorization under E-Verify has established a rebuttable presumption that it has not knowingly hired an unauthorized alien. 32 Also, no employer participating in E-Verify can be held civilly or criminally liable under any law for actions taken in good faith reliance on information received through E- Verify. 33 Note, however, that participation in the program does not provide a safe harbor from worksite enforcement; employers may face civil and criminal liability if based upon the totality of the circumstances it can be established that they knowingly hired or continued to employ unauthorized workers. 34 Thus, 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 of IRCA. Remember though that any E-Verify protection will apply only to employees hired after the employer has enrolled in E-Verify. An employer s sole defense for any employees hired prior to the enrollment date who are later found to be undocumented will be the affirmative defense of timely, well-prepared I-9s. D. IMAGE This last program is mentioned as more of an informational point than a recommendation. Comparatively few employers participate in IMAGE (roughly 115), but it is an available option. 31 Currently, 14 states have adopted a requirement for public or private employers to use the E- Verify system: Arizona, Colorado, Georgia, Idaho, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, Rhode Island, South Carolina, Utah, Virginia. Source: National Conference of State Legislatures, Immigrant Policy Project, E-Verify: Frequently Asked Questions (Revised January 18, 2011) INA 274A, note, Sec. 402(b). INA 274A, note, Sec. 403(d). 34 E-Verify, U.S. Department of Homeland Security, 13

14 The ICE Mutual Agreement between Government and Employers (IMAGE) program is a voluntary partnership initiative between employers and ICE. 35 IMAGE Participants are required to use E-Verify, and to adhere to 12 specific best employment practices. 36 The program emphasis is on self-policing in a company s hiring practices. By participating a company could lessen the likelihood of being found in violation of employment laws, as IMAGE participation may be considered a mitigating factor in the determination of any applicable civil penalty/fine amounts. Upon enrollment and commitment to ICE s best hiring practices, program participants will be deemed "IMAGE Certified. The program is fairly intrusive, and to date few employers feel inclined to participate. However, even if a company does not want to formally enroll in the IMAGE program, it may want to consider ICE s list of 12 best hiring practices with its attorney and adopt some of the suggested practices. Following is a list of the 12 best employment practices: 37 (1) Use E-Verify on all new hires. (2) Use the Social Security Number Verification Service (SSNVS) for wage reporting purposes. (3) Establish a written hiring and employment eligibility verification policy. (4) Establish an internal compliance and training program related to the hiring and employment verification process. (5) Require the I-9 and E-Verify process to be conducted only by individuals who have received appropriate training and include a secondary review. (6) Arrange for annual I-9 external audits. (7) Establish a procedure to report to ICE credible information of suspected criminal misconduct in the employment eligibility verification process. (8) Ensure that contractors and/or subcontractors establish procedures to comply with employment eligibility verification requirements. (9) Establish a protocol for responding to SSA no-match letters and provide employees with an opportunity to make a good faith effort to resolve the discrepancy when it is not due to employer error. 35 IMAGE Frequently Asked Questions, U.S. Immigration and Customs Enforcement, available at IMAGE Best Hiring Practices, U.S. Immigration and Customs Enforcement, available at 14

15 (10) Establish a tip line for employees to report activity relating to the employment of unauthorized workers. (11) Establish and maintain appropriate policies, practices and safeguards to prevent citizenship status or national origin discrimination. (12) Maintain copies of any documents accepted as proof of identity and/or employment authorization for all new hires. Many of these recommendations will be part of any good compliance plan, but some require a bit more cooperation with the government than many employers are comfortable with. Employers will therefore need to decide for themselves which, if any, to adopt, or whether the IMAGE program is right for their business. V. CONCLUSION The challenges facing the equine industry are indeed many, but uncertainty about verifying employment eligibility of foreign workers does not need to be one of them. Through proper planning, diligence and discipline, employers can eliminate the worry about the consequences of a government audit. The equine industry relies heavily on foreign labor, and because of this there is a very good possibility that many employers will at some time employ an undocumented worker, albeit unknowingly. Rather than ignoring this issue and allowing it to become like a ticking time bomb, wise employers will confront this head-on with a carefully prepared immigration compliance plan. It absolutely can be done, and more importantly, in light of the current enforcement environment, it should be done. Never more relevant than now is the old saying where there s a will, there s a way. The mounting risks of non-compliance are simply too great for employers to continue throwing caution to the wind and assuming their workforces are ok. Care should be taken to complete an I-9 form for every employee, from grooms to veterinarians. By getting their houses in order now, employers in the equine industry will be in a better position to weather the storm and to succeed in the business they love. 15