Coutu said Iowa livestock and dairy producers are becoming increasingly concerned about immigration enforcement and how it could impact their farms.

She talked about why ICE (U.S. Immigration and Customs Enforcement) could come to the farm, what happens when federal officials arrive on the farm, how employers can prepare and where to find additional information.

Coutu said a primary reason ICE officials might arrive is an I-9 audit. Form I-9 is a U.S. document that employers use to verify the identity and employment authorization of new hires in the United States. She said an uptick in these audits may be expected because they correspond with the emphasis on immigration enforcement that has been happening in the U.S.

“Form I-9 is an area where employers have significant compliance responsibility under federal law,” she said.

Form I-9 prohibits knowingly hiring, recruiting or referring (for a fee) someone not authorized to work in the U.S. for specific employment situations.

“In agriculture we may have individuals (such as in the H-2A program) who are authorized to come into the U.S. to work, but only for a specific job or for a specific employer,” she said.

Form I-9 prohibits employers from continuing to employ someone knowing they are unauthorized for employment — such as if their verified time allowed in the U.S. has expired.

“When it comes to the I-9 it’s not simply another onboarding document in the way that we want to make sure how important it actually is,” said Coutu, adding that employers need to use it properly, to verify work authorization to the best of their ability.

Coutu said employers should not discriminate against individuals in the I-9 process on the basis of national origin, citizenship or immigration status. It means employers cannot request more or different documents than are required to verify employment eligibility, and cannot reject reasonably genuine-looking documents, or specify certain documents over others.

Coutu said employers must make the instructions for Form I-9 and lists of acceptable documents available to employees (employees have choices on what documents to present), ensure the employees complete Section 1, and complete Section 2 within three business days after an employee’s first day of employment.

Coutu said I-9 forms should be kept on file for at least three years after the date of hire, or one year after the date of the individual’s employment is terminated. They are not required to keep copies of documents the employee presented to show identity and work authorization.

If an I-9 audit/inspection is requested, employers receive three business days to produce the I-9 form(s). Coutu said federal agents inspect I-9s at such a time, and it generally requires employers to provide supporting documentation (such as a copy of the employer’s payroll).

Coutu said penalties for I-9 violations can be expensive, with paperwork violations ranging from $288 to $2,861 per violation, and knowingly employing unauthorized workers ranging from $716 to $28,619 per unauthorized worker.

Coutu recommends periodical self-audits to ensure paperwork is correct and in order, and having at least one person on staff to handle I-9 compliance.

I-9 forms, instructions and resources can be found at http://www.uscis.gov/i-9-central. That website will provide the most updated forms at all times.

Detention and raids

Coutu said another reason federal officials may appear at a farm is to detain a specific individual whom they believe may be unauthorized to work in the U.S., and that a raid appears as several officers arriving on a farm, searching through an employer’s facility and potentially detaining individuals.

Coutu said a judicial warrant signed by a judge is required to search non-public areas without consent. That warrant will be extremely specific in what will be searched, along with specific address(es) and a time frame for the search, etc.

“Anything outside the scope of that isn’t authorized by that warrant,” she said.

An administrative warrant is not the same as a judicial warrant and does not authorize a search of non-public areas without consent.

A federal official could also arrive at a workplace because of consent from someone at the workplace.

“An officer showing up at the farm can take a lot of different forms. It can be intimidating, maybe scary — often they’re armed, and may have hoods on … it can be very unsettling for whoever is receiving them at the farm. So it’s important for whoever is coming into contact with those agents to understand what they can and can’t do or object to,” said Coutu.

She recommended creating an internal protocol for onsite environment action with the help of a qualified attorney. She also recommended reviewing workplace spaces, clearly identifying private areas with signage (such as for biosecurity, ag safety, etc.), as well as an identified space where an ICE officer would be asked to wait, that would be clean and free of personal paperwork lying around, or people coming in and out.

“Creating protocol for what happens when someone comes onsite is extremely important,” said Coutu. “It might include someone to be the point of contact, who would engage if officers show up at the farm or worksite — someone who can remain calm and be professional, who is trained and knows how to communicate with officers without giving consent, recognizing that it might be a high-stress situation, knowing how to ask for identification from the officer, and asking for warrants, and knowing what those warrants are.”

She stressed that documentation of all things spoken about and/or taken at the time of a visit by federal agents is paramount.

“As employers you can’t impede an investigation, but you can document what happened,” said Coutu, adding that informing employees about their rights if they are questioned by federal agents would be beneficial.

“They do have the right to remain silent, but that’s not something that (as the employer) you want to tell them to do,” said Coutu, adding that employees should never be hidden or told to run, because that puts employers in a liability situation.

If employees are detained, employers can seek out as much information as possible from officers about where employees are being taken.

Keeping an updated emergency contact list for employees is also important, she said, in the event that an employee may be detained, as it would impact that person’s family life.

Coutu said engaging an attorney at the outset to examine practices and preparation protocol, and establishing a relationship with that attorney before an enforcement action on the farm occurs could be helpful.

“Employers should prepare for increased enforcement,” she said, adding that preparing for it ahead of time would be beneficial for everyone involved and reduce the stress level of what can be “a very stressful situation.”

Coutu said this information is not to be taken as legal advice, but is for educational purposes only. She advised those with questions about their own specific farm employees or situations to contact a legal representative qualified to handle their questions, and that working with a qualified attorney is advised.