The need for a reliable and legal workforce is of utmost importance to the landscaping industry, as well as other seasonal business. I hear from seasonal employers every day about how difficult it is to find reliable U.S. workers to fill lower-skilled positions, such as Horse Grooms, landscape workers and hotel/resort workers. The reality is that American workers are not interested in seasonal work, let alone work requiring intense manual labor.

It is a myth that the only reason any employer would hire foreign workers is because it’s “cheap labor”. There is absolutely no incentive for any employer to hire a foreign worker over a U.S. worker. It simply doesn’t make financial sense. It is at least three to four times more expensive to hire a foreign worker over a U.S. worker due to legal fees, government filing fees, advertising costs and consular fees and transportation costs. Further prevailing wage requirements apply to foreign workers, resulting in the need to pay higher wages to foreign workers.

So, then we ask ourselves, “Why would any seasonal employer hire a foreign worker over an American worker?” Answer: they can’t find a U.S. worker that stays more than one to two days. People want year-round jobs, not seasonal. Generational Crisis: our youth no longer have to work summer jobs, nor are they interested in hard manual labor. There are internship opportunities or other options taking them out of the seasonal workforce. No one wants to shovel horse manure.

There are limited options for lower-skilled employment in the U.S. Our immigration system favors highly educated and professional-level positions, leaving a wide gap in our lower level jobs.

Understanding I-9 compliance

In this era of ever-increasing enforcement, it is critical to have an understanding of the I-9 hiring process, as well as compliance requirements. U.S. Immigration and Customs Enforcement, the agency charged with administering the I-9 program, is a well-funded machine that takes a “no tolerance” approach to I-9 completion and maintenance; and there is the potential for significant employer sanctions and penalties for seemingly minor errors and non-compliance. The fact that the I-9 Employer Handbook is over 61 pages long gives an indication of how complicated this form can be. The I-9 form is riddled with traps and ambiguity. Given ICE’s policy of strict compliance, you need to know how to avoid these traps.

Tips on completing Form I-9

• Be consistent – Establish uniform company policies regarding I-9s. Treat all people the same when announcing a job, accepting applications, interviewing, offering a job, verifying eligibility to work, and in hiring and firing.

• Complete an I-9 for ALL employees, including U.S. citizens.

• Employee must complete Section 1 on first day of employment; Employer completes Section 2 by end of third day.

• Do not request more documentation than is required to show identity and employment authorization or ask for a particular document to show identity or employment eligibility.

• Do not ask for a particular document to show identity or employment eligibility

• Do not reject documents that appear to be genuine and belong to the employee

• Do not treat groups of applicants differently (e.g., based on looking or sounding foreign). “Look at the facts, not at the faces” when completing the Form I-9

• You may complete I-9 early, but not before offer and acceptance.

• Promptly re-verify employment authorization 90 days prior to expiration.

• Promptly destroy records not required to be maintained: after employment ends, keep I-9s for at least 3 years from the date of employment or for 1 year after the employment ends, whichever is later. Keep I-9s on file for all current employees.

• Conduct regular self-audits of I-9 files to fine discrepancies or errors.

• Keep I-9 records separate from personnel files.

• Keep copies of the documents presented by the employee with the I-9 form (not required, but recommended).

• Avoid “citizen-only” or “permanent resident-only” hiring policies unless required by law, regulation or government contract. In most cases, it is illegal to require job applicants to be U.S. citizens or have a particular immigration status.

Steep fines and significant penalties for unlawful hiring practices

We are seeing increased ICE raids and I-9 audits across the country, as well as a steep increase in deportation/enforcement activity. Employers found to be employing undocumented workers can face steep fines for hiring and I-9 violations, as well as criminal charges, including harboring or transporting illegal aliens. Significant and increasing penalties: Up to $16,000 per violation for unlawful hiring practices, including knowingly hiring an undocumented worker or up to $1,100 per violation for failing to comply to I-9 requirements.

• Criminal penalties: - Pattern or practice of violations

• Up to $3,000 per employee and/or 6 months’ imprisonment

• Document Fraud: Fraud or false statements or misuse of visas, immigration and identity documents

• Civil fraud:   $375 - $6500 per document

• Criminal fraud:  fines, imprisonment up to 5 years, forfeiture of assets

• Aggravating / mitigating factors: business size, good faith, seriousness of offense; if unauthorized aliens were employed, history of employer

ICE enforcement actions

We are hearing about ICE enforcement actions everywhere! Since November 2014, ICE (the agency charged with enforcing our immigration laws) operated under established “enforcement priorities” implemented by the Obama administration. ICE was directed to allocate its resources to the removal of individuals that: (1) posed a threat to national security; (2) had convictions for 3 or more misdemeanor offenses or other criminal offenses; (3) were aliens issued a final order of deportation. The Trump administration rescinded the Priority Enforcement Program by Executive Order in January 2017 broadly defining “any” individual present in the U.S. without status as a “criminal alien” subject to removal action.

Unprecedented culture of enforcement: most recently, on January 10, 2018, ICE issued a press release setting forth its three-pronged approach to worksite enforcement compliance: (1) “compliance through I-9 inspections, civil fines and referrals for debarment; (2) enforcement through the arrest of employers, knowingly employing undocumented workers, and the arrest of unauthorized workers for violation of laws associated with working without authorization; and (3) outreach, through the ICE Mutual Agreement between Government and Employers (IMAGE) program, to instill a culture of compliance and accountability.

3 and 10 year Bar

• If overstay is less than 6 months, there is no penalty from reentering unless deported or put into immigration proceedings

• If overstay is greater than 6 months but less than 1 year, then barred from returning for 3 years

• If over stay is greater than 1 year, then barred from returning to U.S. for 10 years

 It is estimated there are more than 11 million undocumented persons in the U.S.