President Trump has made immigration enforcement the centerpiece of his administration. This enforcement thrust has increased the pressure on the landscape contracting industry to be vigilant in following federal rules regarding employee work authorization documentation.

The landscape contracting industry has one of the highest proportions of unauthorized foreign workers in its workforce at 21 percent in 2014, according to the Pew Research Center. With the strong economy and low unemployment, many landscape contractors are struggling to find enough employees to do the work they have booked and may not be as careful as they should be in checking worker documents. This makes landscape contracting a prime target for administration enforcement efforts.

When ICE Comes Calling

An Immigration and Customs Enforcement (ICE) visit to your landscape contracting business can lead to disruption of your business, loss of your workforce and perhaps civil and criminal penalties for you as an employer. Here is what you can do to minimize your exposure should ICE come knocking at your door.

Before ICE Knocks

Form I-9

  • Be sure that you are using the latest version of the I-9 for new employees. You should be using an I-9 with “Form I-9 07/17/17 N” printed in the lower left-hand corner of each page of the form.
    • This new I-9 must be completed for all new hires starting Sept. 18, 2017.
    • It is not necessary to complete a new I-9 using this form for existing employees with a prior version I-9 on file, except for existing employees whose work authorization is expiring and must be renewed.
    • The storage and retention rules for I-9s remain the same.
    • You may download the new I-9 form by clicking here. You may also find additional information about completing I-9s by going to the Department of Homeland Security website.
  • Do not keep your I-9 files with your regular employee personnel files. Keep your I-9s in an orderly file with documentation in another office or room where ICE agents can get to them without disrupting the normal flow of work and where they are unlikely to encounter employees or customers.
  • Have a plan if ICE comes to your business and share it with employees. ICE raids are becoming more frequent in our industry. Employees should understand this and react calmly and politely if they encounter ICE agents. Employees should not run or abruptly leave the premises if ICE shows up.
  • Share information with your employees about their rights should ICE appear at your business.
  • Conduct a self-audit of your I-9 files to be sure they are up to date. Better you discover any discrepancies and fix them rather than ICE.
    •  Inform your employees that you are conducting the audit and explain why. If you are a small landscape contractor, your self-audit should involve all employees to avoid charges of discrimination. Do this at least annually.
    • If you have a larger business where doing an all-employee audit would be too burdensome, put in place a written audit plan that uses a nondiscriminatory way of selecting groups of files to review, with the goal to get through all the files in a set period. For example, audit those employees with surnames starting with A-M, then in six months do N-Z. Do not audit only those employee I-9s with surnames you consider to be Hispanic or use any other ethnic or racial criteria.
    • Find an attorney you trust who knows immigration law and who can be at your place of business or give you advice over the phone if ICE shows up.

No-Match Letters

This spring, the Social Security Administration (SSA) resumed sending out so-called “no-match” letters to employers. The Obama administration suspended sending these letters in 2012. These letters identify employees whose social security numbers provided at the time of employment do not match the data held by SSA.

In these letters, the SSA suggests that employers use a website to verify the information. However, this is not a requirement and not advised. Employers must only check the information provided by the SSA against W-2 and W-4 information and report any errors.

If you get a no-match letter, take the following steps:

  • Check the reported no-match information with your employee’s personnel records.
  • If the discrepancy cannot be resolved, for example, a typographical error, legal name change, etc., inform the employee of the letter and ask the employee to confirm his or her name and social security number.
  • If the discrepancy still exists, advise the employee, in writing, to contact the SSA to correct and/or update his or her SSA records. Give the employee a reasonable period to resolve it.
  • Submit corrections to the SSA.
  • If the employee does not respond or act to resolve the issue, contact your legal counsel to discuss next steps.
  • Document in writing each step that you have taken to resolve the discrepancy.
  • Most of all, do not ignore a no-match letter. If you do not respond in a proactive way to the no-match letter(s), ICE could use this as evidence of your knowingly employing a person without legal work authorization.

When ICE Knocks

  • There are three ways that ICE might initiate an I-9 review:
    • By issuing a Notice of Inspection that compels the production of certain specified documents, that may include I-9s, supporting documentation and other business documents, such as articles of incorporation. You have three days to produce the requested documents.
    • ICE may show up at your door asking you to voluntarily submit to an inspection. You may agree or not.
    • ICE agents may have a search warrant, and that warrant will specify what they are seeking. Ask to see the warrant and read it carefully so that you provide access only to those items specified on the warrant. This is one reason you want to separate the I-9s from the regular employee personnel files. Also, check the warrant to make sure that the address is correct. ICE may have walked into your business by mistake.
  • Be sure that you have someone in the office, at all times, trained to respond to an ICE raid. All employees should know who that person is and to direct any questions from ICE agents to that person. That person should have a call list ready to notify your attorney and other company management, as soon as ICE shows up.
  • Educate employees to calmly go about their business if ICE agents show up.

ICE inspections and raids are, unfortunately, becoming more commonplace in our industry. By doing some preparation and having a plan, you can minimize the disruption to your business, potential loss of employees from your workforce and fines.

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