ICE’s role includes taking note of I-9s

In today’s 24-hour, seven-day-a-week news cycle, people are regularly seeing newsfeeds about ICE.

ICE is short for the United States Immigration and Customs Enforcement and is under the direction of the Department of Homeland Security.

While headlines and stories are about catching criminals, ICE can also have an impact on agricultural employers and that was addressed by Kristiana Coutu, an attorney and certified public accountant with the Center for Agricultural Taxation at Iowa State University. Coutu, also a fourth-generation dairy farmer, spoke during a recent I-29 Moo University webinar.

“People are watching the news or reading online reporting of things that are happening, whether it’s raids on farms or other work sites, and oftentimes terms are used interchangeably, and people are little confused on what’s happening,” Coutu said.

If an employer uses foreign labor, now is good time to review Form I-9, an employment eligibility verification form that requires U.S. employers to verify the identify and employment authorization of individuals hired in the country. This includes all citizens and aliens.

Coutu encourages ag employers to contact an immigration and employment attorney to help them with their questions and to assist them if they have an interaction with ICE.

Stay informed

Being an ag employer means having to deal with several agencies at the federal level that can also deal with fair labor, H-2A workers and wage and hour standards, she said. She encouraged an employer to be familiar with the government websites that involve workers.

When it comes to a visit about I-9 compliance it is likely going to be from ICE, Coutu said.

“This isn’t a new law. This isn’t a new regulation. I-9 audits have been happening for many years,” she said. “What I do think is we’re going to see is probably an increase in I-9 audits, potentially just because that corresponds with an emphasis on immigration enforcement.”

Another reason why ICE may show up at a farm or at an employer worksite is to detain a specific individual who the agency believes is unauthorized, she said. An ICE raid is with several officers showing up, searching through an employer’s facility and potentially detaining several individuals. Coutu said that can lead to a broader search all under the auspices of an I-9 audit.

To help guide farm employers, she said an I-9 audit may be started by mail notification. Much of the labor laws dated back to 1986 define how employees can be hired. Agriculture has programs that allow for specific jobs that are tied to a specific employer.

The law prohibits employers from continuing to employ someone who is unauthorized.

“In some cases, you may have someone who is authorized for employment for a specific amount of time and that time may expire and if authorization is not continued then they are no longer authorized for employment.”

That puts the onus on the employers to make sure I-9s are completed so employees’ work can be authorized to the best of the employers’ ability, she said. The documents need to show that employees are who they say they are.

An employer can face fines for violations, she said.

Due diligence

Employers also have the responsibility not to discriminate against individuals in the I-9 process. While employers must do their due diligence when reviewing documents that  employees provide, but the employer can’t go beyond what’s required.

She said the federal government will update the form and employers are required to use the updates for new employees.

If an I-9 onsite audit is going to occur by either the Department of Homeland Security or most likely ICE, it all starts with a notice of inspection, Coutu said. Those notices can be delivered by certified mail, but in some cases an in-person delivery can occur.

An employer does not have to immediately turn over I-9 documents, she said. An employer has three business days to produce them. An employer can waive the three-day period, but Coutu said most attorneys will advise against doing that, so the employer has an opportunity to review the documents first. An employer can make corrections like a missing date or information  that was put in the wrong box on the form. When corrections are made there is a specific procedure to follow.

If there is substantive violations found, an employer could face hefty fines.

The audit can look at an employer’s payroll, too, and a list of active and terminated employees.

She advised ag employers to regularly practice self-audits with key personnel. They should also have a plan for coordinate who is to be in charge in case ICE shows up.

What if ICE shows up?

If ICE shows up on a farm it can be disruptive to an operation, but officers need to have permission to search non-public areas that can include consent from someone at the farm or worksite.

She said it can be intimidating for employers and employees. In some situations, they are armed, and their attire can be unsettling.

“It’s really important for whoever might come in contact with the agents or the officers to understand what they can and can’t do and they can and cannot object to,” she said.

A judicial warrant is one that is issued by a court to give ICE permission specifies what can be searched or seized. She said that’s why it is important to have a working relationship with an employment attorney and also in case the operation receives an administrative warrant, which is less broad than a judicial warrant.

An administrative warrant does not authorize the search of non-public areas without consent.

Employers may designate a non-public area that blocks public access, which she said is common with many livestock operations that do so for biosecurity purposes.

An internal plan with protocol can help minimize disruption of what could be a stressful situation. Having a key person who can stay calm and communicate with officers is crucial.

She believes it is also important for the employer to document the activities. The employer should never engage in a physical altercation because that can lead to an escalation.

The employer should not try to hide employees or encourage them to leave the site during a raid or investigation.

She said with advance planning it can help an employer to have fewer problems or potential violations, and that reduce stress on the employer, employees and their families.

Dave Bergmeier can be reached at 620-227-1822 or [email protected].