Don’t wait for immigration reform

Establish company policies to deal with a growing immigrant work-force and No-Match situations now.

A tectonic shift in how we view food production underlines the continued need for immigrant labor in the U.S. poultry processing industry, according to Dr. Wes Jamison, University of Florida. That shift combines globalization, an increasingly unconstrained flow of labor coming over the border, and consumer demand for low-cost, quality food. Together they equal intense competitive pressure for finding employees.

"It is difficult for the poultry industry to find indigenous labor from their local environment," says Dr. Jamison. And although impending government actions may make it more attractive to hire other than immigrant labor, other sources will likely not fill the need.

Presidential influence

Will there be significant differences in immigration reform depending on who resides in the White House in November? Dr. Jamison doesn't think so. Right now, the political climate for immigration is favorable. "Latinos will be swing voters in this election, pretty critical, so you won't hear a lot of high-octane rhetoric on immigration," he says.

Dennis Pittman, director of corporate communications/public affairs for Smithfield Foods, echoes Dr. Jamison's sentiment: "I don't think either party or any of the candidates are willing to make the hard decision to implement something new. Any of the steps would be unpopular to some segment of this country's population."

Pittman believes the tools for improving the system reside within the government. Creating a cross-reference system for information collected by various governmental entities, such as Social Security and the Internal Revenue Service, and making that system available to employers, would make it much easier to identify undocumented workers and prevent identity fraud.

New No-Match obligation

The revised proposed rule issued by the Department of Homeland Security (DHS) on March 28 (requiring further action before becoming enforceable), makes efforts to eliminate the ambiguity regarding an employer's responsibilities upon receipt of No-Match letters. In the revision, DHS maintains that growing evidence and consensus that Social Security no-matches are a legitimate indicator of possible illegal work by unauthorized aliens justifies its rule. DHS contends that an employer's failure to conduct reasonable due diligence upon receipt of a No-Match letter can establish constructive knowledge of an employee's unauthorized status as stated in the August 2007 regulation.

A clarification of the prior rule instructs employers to promptly notify an affected employee after completing internal record checks that have not resolved a mis-match. This obligation would typically be satisfied if employee notification is within five business days after the employer has completed its internal review. However, the employee can be notified before the employer has completed the internal process.

Social Security No-Match letters, suspended in anticipation of the new regulation, are being reinstated by Immigration and Customs Enforcement (ICE). Following current directives, employers with 10 no-matches that represent more than 0.5 percent of their employee workforce will receive letters and be obligated to deal with the information.

This year's letters carry a new obligation according to Mark Reed, president and CEO of Border Management Strategies, and former officer with the U.S. Immigration & Naturalization Service.

Reed said that former No-Match letters were sent out as courtesy notices. No enforcement action was initiated when a company did not follow-up. Employers were basically free to handle notifications as desired.

Now, ICE is building in consequences for unresolved No-Match situations. "What that is going to look like, I don't know," Reed says. "I advise all of my clients that this ruling should not be threatening. They should already be acting on No-Match letters."

Attorney James W. Wimberly, Jr., specializing in immigration at Wimberly, Lawson, Steckel, Schneider & Stine, P.C., agrees with Reed's comments about new enforcement actions: "ICE decided over the last three years that their traditional method of issuing modest fines for immigration violations was not bringing about the amount of adherence that they wanted.

"Therefore, wherever possible, they are going to seek criminal prosecutions and even asset forfeitures. ICE feels that it is through these criminal prosecutions as high up as they have proof, that they can best gain the employer community's attention and compliance with all the requirements and rules."

New I-9 tactic

ICE has also kicked up I-9 (Form I-9, Employment Eligibility Verification) inspections. Employers will be chosen on a random basis to provide all of their I-9 documents for inspection in an off-site, lab-type setting. Forensic inspectors will be looking for any signs of misconduct, indications of identity fraud or indications of unauthorized workers that create discernable patterns in I-9 forms.

Although the companies chosen for I-9 reviews are to be random, Reed believes that any facility that has been dealing with a significant number of No-Match situations may move up the review list. "I wouldn't be surprised if they didn't start basing these new notices of inspection on corporations that are getting a proportionately large amount of No-Match letters," he says.

What the government wants from employers

"The government is looking for employers who engage in misconduct, either knowingly hiring or getting involved with some sort of smuggling or identity fraud situation where they either know what's going on or should know what's going on constructive knowledge," says Reed. The secondary priority is breaking the pattern of identity fraud, he added.

Once they believe they can attach a company to misconduct, there are three basic means of investigation: raids, the No-Match agenda, and a new I-9 tactics.

Reed's advice, "Don't wait for the final immigration rule. If it appears that you have some significant identity fraud issues, don't wait for the government to see it with or without the final rule.

"The meat packing industry has been a target for as long as I have been in the government, and it's not going to get away from this until it starts taking more aggressive, affirmative actions to satisfy the government's concerns about the industry as a whole.

"The time is ripe for the industry to step up, work with the government," says Reed. "Say we will be your model."

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