Navigating the Labor Paper Trail
What Farm Owners Need to Know About ICE Audits and Immigration Raids
OMAHA (DTN) -- As more farms and agribusinesses face scrutiny about the legal status of their employees, business groups and others are going over how farmers should deal with audits and potential raids if Immigration and Customs Enforcement (ICE) agents show up.
The National Council of Agricultural Employers (NCAE) held a webinar earlier this year for its members with Chris Schulte of Fisher Phillips, a national law firm that specializes in labor and employment law.
That was before the pace of enforcement ramped up, but the legal principles of what ICE is allowed or isn't allowed to do remain the same.
"The news reports on the extent to which ICE is or is not targeting farmworkers has been a rollercoaster; at this point, the advice is still for employers to double-check their I-9s and procedures and for workers and employers to know their rights and be prepared as though ICE may visit," Schulte told DTN.
DTN followed Schulte's webinar and also used AI tools to find links to more background information on employment rules, documentation and ICE procedures.
STARTING WITH THE I-9 FORM
A big red flag for any employer is paying its people with cash. The Treasury Department is likely to flag ICE if there are people on payroll who are being paid in cash. "A pretty classic red flag of a significant undocumented population there," Schulte said.
U.S. Citizenship and Immigration Services (USCIS) requires employers to fill out a Form I-9, Employment Eligibility Verification, which is used by employers to validate documentation that a person is legally allowed to work in the U.S.
Employees must provide a List A document, such as a U.S. passport or a Permanent Resident Card, also known as a "Green Card."
If an employee candidate doesn't have a List A document, then the candidate has to provide a List B document like a driver's license and a List C document such as a Social Security card.
H-2A workers must provide a valid unexpired passport and a valid Form I-94 showing their H-2A status.
I-9 PITFALLS
Any identification with an expiration date is likely to raise questions during an I-9 audit. Experts say it is important for employers to self-audit their documents to see if there are any errors or missing information on an I-9 form.
If a form has multiple errors, then an employer should complete a new one with the worker.
"Do not conceal errors by erasing text or using correction fluid," Schulte advises employers.
TEMPORARY PROTECTED STATUS (TPS)
People with TPS status are allowed to live and work in the U.S., though the Trump administration has been aggressively pulling back on TPS status for people from Venezuela, Haiti, Ukraine, among other countries. Some of the TPS decisions remain tied up in court. People with TPS status should carry a Form I-766 Employment Authorization Document (EAD), which includes an expiration date.
TPS is becoming more complicated with USCIS now frequently updating its website with new guidance, court rulings and TPS expiration dates.
Just last week the mayor of Ottumwa, Iowa, said at a city council meeting that JBS was issuing notices to 200 employees whose work visas were revoked. Those workers were from Cuba, Haiti, Guatemala and Nicaragua. DTN reached out to JBS for comment but did not receive a response.
The American Association of Meat Processors (AAMP) has requested its members contact lawmakers to demand immigration reform. AAMP is holding its annual meeting this week in Kansas City, Missouri, which will include its own presentation on how employers should strengthen their workplace compliance rules and policies in an increasingly high-stakes environment, the group posted.
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NOTICE OF INSPECTION
Generally, ICE is expected to give a business 72-hour notice if they are coming to audit I-9 forms. Farmers can ask for delays during harvest or if they happen to be out of town.
Employers should designate a staff member as a primary contact for ICE agents or have an attorney involved from the beginning. "Talk to our attorney," Schulte said.
ICE can check payroll lists, but not everyone's individual pay records. Schulte advised employers to keep those records separate.
POSSIBLE RESULTS OF AN I-9 AUDIT
If everyone's documents are valid, the audit could conclude cleanly.
Otherwise, employers could receive a Notice of Suspect Documents, which gives the worker a chance to correct the problem. If the worker cannot provide up-to-date documents, the employer ultimately will need to terminate the employment. Penalties for employers keeping unauthorized workers can only get worse, Schulte said.
There are multiple levels of notifications for violations:
-- Notice of Technical or Procedural Failures. An employer has 10 business days to correct.
-- Warning Notice of Substantive Violations. This could mean there are I-9 form major errors or unauthorized hires. This can be accompanied by an Intent to Fine and may escalate to civil or criminal penalties.
A warning notice is often the first and only warning before further enforcement.
"At some point, it becomes a criminal issue," Schulte said.
WHAT TO DO IF ICE RAIDS THE FARM
Schulte's first advice when reacting to a raid is to "stay calm."
That can be difficult as some farms have reported having 20 law-enforcement vehicles pull up with ICE agents in tactical gear and automatic weapons. Still, remain calm.
As footage of current ICE raids show, agents and other officers may try to prevent anyone from leaving the property. Don't attempt to run.
ICE agents must present a warrant. The type of warrant determines what ICE agents are allowed to legally do.
Notify a designated person for the farm, such as an attorney, to review the warrant issued to authorize the raid. Take a photo of the warrant and send it to the farm's attorney.
-- Judicial warrant: Signed by a federal judge or magistrate. This could be a search warrant or an arrest warrant. It allows agents to search a business without consent, but it has specific times and locations listed on the warrant. The warrants do have expiration dates.
-- Administrative warrant: Issued by ICE, not a judge. These warrants are common for arresting people for immigration violations. And they are becoming more frequently used by ICE. Administrative warrants, though, do not authorize ICE to enter non-public business areas or private homes without permission. Agents are not allowed to search areas considered to provide a "reasonable expectation of privacy."
Owners and employees are not required to answer questions from ICE agents during a raid. An employer is allowed to follow agents, take notes on their names, see what is searched and what is taken, but people are not allowed to interfere. It is legal to record videos of what is happening in most states.
ICE also should provide an inventory of property taken.
If employees are taken, employers should ask for contact information about the detention center to notify families and attorneys.
E-VERIFY
Though not typically required for farms, employers are increasingly encouraged to use the federal E-Verify system.
But E-Verify also can also be a burden for small farms and other small businesses. It requires training, setting up an account and responding to Tentative Non-confirmation (TNC) notices when an I-9 doesn't match government records.
This doesn't mean a worker is unauthorized, but it means the E-Verify system couldn't immediately confirm an employee's eligibility. E-Verify is considered highly accurate, but there are errors that affect thousands of workers each year due to documentation issues or lags in a computer system. Roughly 85% of workers who contest TNC notices are later confirmed as authorized.
Some states may require H-2A and H-2B employers to use E-Verify even though USCIS has already vetted those workers.
Some states mandate E-Verify, though each state has its own rules regarding the industries and the number of employees in the business required to use E-Verify. Those states are Alabama, Arizona, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee and Utah.
Other states require E-Verify for companies with public contracts that could affect farms or agribusinesses. Those states are Arkansas, Idaho, Indiana, Kansas, Louisiana, Minnesota, Missouri, Nebraska, Oklahoma, Texas, Virginia and West Virginia.
EMPLOYEE CONSIDERATIONS
Jose Lopez is interim executive director of the Food Chain Workers Alliance (FCWA) in Los Angeles.
While there have been stories about American citizens swept up in ICE raids, a passport or a REAL ID driver's license should be enough to validate a person is a citizen, or lawful permanent or temporary resident (green card holder), a temporary visa holder, a person with temporary protected status, a refugee, or a DACA recipient.
For non-citizens, a REAL ID will expire when its legal status is set to expire.
Lopez, a green card holder, said he now has to carry additional paperwork with him all the time.
Some green cards are now only getting reauthorized for two years. A card could show it is expired so people are having to also carry USCIS letters proving their status has been renewed.
"A legal status right now, you know, it's not black and white," Lopez said. "I have a green card, but it's good for two years, but you are told it can take six months to process so you have to start early. So, for me, I'm having to carry my expired green card and my letter that extended it for two years. It's just crazy that someone has to carry all of these documents everywhere they go because they could be detained at any moment. It's under the discretion of the ICE agent whether they are going to do detain you. We've seen DACA people detained, we've seen people with green cards detained."
For more, see DTN's special coverage of agricultural labor issues:
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