Immigration Enforcement -- Update

Bryan Little, Farm Employers Labor Service

Updated August 8, 2019

Various news outlets have reported significant immigration enforcement actions aimed at food processing facilities in Mississippi on August 7.  These media accounts indicate law enforcement authorities working with Immigration and Customs Enforcement (ICE) focused on poultry processing facilities.  680 people were reportedly detained, and were variously described as "illegal immigrants," "undocumented people," or simply as "workers;" they have also been variously described as having unenforced deporting orders pending against them.  Many have been released on their own recognizance or placed on home restriction with ankle-worn tracking devices.

Media accounts were less clear about what role, if any, enforcement agencies believe employers may have played in any criminal activities related to the presence of undocumented workers.  One report indicated that law enforcement authorities acted on tips from sources inside the operations of these employers.  This implies law enforcement will be investigating whether the employers were involved in encouraging or facilitating the employment of undocumented workers.  Employers involved in immigration-related enforcement action in Iowa in 2008 were convicted of various immigration and labor law-related crimes.

 While the enforcement actions of August 8 did not occur on agricultural operations, such enforcement activity will probably impact agricultural operations who rely on these business to process their products and will have ripple effects in the local community.

 California farm employers can take steps to prepare themselves should they be affected by similar enforcement actions.  

Agricultural employers can do several things to be prepared for this (note: some resources may not be available to non-FELS Newsletter subscribers; you can subscribe here):

• Make sure you complete, valid Forms I-9 for each person you currently employ and each person you have employed recently whose Forms I-9 you are required to retain.  You are required to retain Forms I-9 for an employee for 3 years, or one after the end of that person's employment, whichever is later.  You review and correct your Forms I-9 using audit tools devised by FELS (for Forms I-9 with revision date March 8, 2013 and prior; use this audit form for Forms I-9 with revision dates Nov. 16, 2016 and later).
• If you have received a letter advising you that name and Social Security number combinations for your employees reported by you on Forms W-2 do not match the Social Security Administration's records, please refer to "Social Security Number/Name No-Match Update," FELS Newsletter, May 2019.  Employers should exercise due diligence with respect to information that an employee's name and Social Security number don't match the agency's records, (see action steps 1 through 5 in the article) but also take care not to assume that a "no-match" letter establishes that an employee is not legally eligible to work.
• Understand and comply with the requirements of AB 450 (Chiu, D-San Francisco), require you to post for employees a notice of immigration-enforcement actions, should they occur. 
• Consider use of the H-2A temporary non-immigrant worker visa program.  The program has experienced substantial growth in California in recent years, though it still suffers from bureaucratic impediments, high costs (including the requirement to pay the inflated Adverse Effect Wage Rate), and other problems impeding the program's use, including the requirement to provide housing in chronically housing-deprived California.  You can find more information about the H-2A program here.

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