In a recent episode of the Progressive Dairy Podcast, Brook Duer from the Penn State Ag Law Center discussed I-9 audits, ICE raids and how dairy producers can develop a plan to minimize chaos during an unexpected visit from immigration officials.
“The first step to control the situation and keep visitors from wandering around the farm is to have appropriate signage. Signage helps to keep order,” Duer said. “Every farm should have visible signage instructing visitors to report to the farm office.”
ICE raid vs. I-9 audit
There are two primary reasons immigration officials would visit a farm: an I-9 audit and what is known as an ICE raid, where they are checking immigration paperwork for specific people.
During an I-9 audit, farm owners will either receive a notice by mail or an in-person visit from immigration officials requesting this information.
“You have 72 hours to produce this paperwork. All you are required to do at the time is acknowledge it and then produce the requested documents within three days,” Duer said.
Duer recommends storing I-9 forms separate from employee personnel files and designating an employee to oversee this paperwork.
“That’s the person on your team who knows this stuff cold, and that is who should be looking through these I-9 forms to make sure all forms are accounted for and everything looks correct,” Duer says. “Keeping these forms in a separate file together away from personnel files prevents any information included on an I-9 form from being used as discrimination. These documents should not be available for all employees to view. The I-9 files should only be accessible by one or two people.”
After receiving the request, Duer recommends that dairy producers first consult an attorney. Maintain the original copies in your files and make a copy of everything submitted for your own records.
During an ICE raid, immigration officials should have a judicial warrant signed by a judge from a federal or state court if they are looking for specific people. Officials must also provide a copy of the warrant with sufficient time to read it.
“It’s important to know that you don’t have to tell them where things or people listed in the warrant are located,” Duer said. “If they didn’t get it right when they prepared the warrant by identifying which rooms they need to enter, don’t give them that information. You have no obligation to tell them where that person is. Also, don’t help them search your property for those things or people.”
However, he recommends monitoring their whereabouts during their search and paying attention to where they can go and what they can take with them from your property.
“I know the urge is always there to be helpful, but that is not a good idea in these circumstances,” he said.
Without a judge’s signature and court seals, it might be an administrative search warrant, which is an internal document from the Department of Homeland Security. A judicial warrant provides the authority to enter areas closed to the public and to take things or people mentioned in that warrant.
“An administrative search warrant is not a legitimate warrant that allows them to go anywhere the public isn’t permitted to go and doesn’t allow them to take anything or anyone. Look for a judge’s signature and the name of the court. Also have one of your employees designated to record names and badge numbers of immigration officials that are there.”
Planning and preparation
During a visit from immigration officials, Duer’s primary recommendation is to have all employees report to a predetermined location that is not open to the public (i.e., not the farm office or other areas visitors can regularly visit, such as a farm market building) and stay there for the duration of the visit from immigration officials. However, there may be some employees like milkers that are unable to pull back from their assigned tasks. This plan also helps to prevent immigration officials from bumping into employees and starting impromptu conversations.
In addition to the primary plan, contingency plans can address various scenarios that could occur when the situation does not go as expected. To brainstorm contingency plans, think through what could go wrong and then determine the action plan for how to handle those scenarios should they arise. Share these plans with all employees and conduct training to familiarize the entire farm team with their roles and responsibilities.
“Get them feeling good about them saying that visitors should report to the farm office and not answering questions. If an agent continues asking them the same questions, they should repeat their message and then find a way to exit the conversation,” Duer said.
These drills are designed to build their confidence. He also recommends employees become comfortable with silence.
“People have the idea that if they talk and that it relaxes them, so they start telling some story about why they don’t have their immigration papers with them. No stories are needed. The more you say, the more they will ask you about. You want the situation to be over and the fastest way to achieve that is to clam up and cut off the conversation,” Duer said.
It is also key to communicate to employees that the farmowner/manager has their back and is doing their best to protect them. However, not following the plan can put employees in jeopardy.
“The impulse to run or jump in the car and drive away when immigration officials arrive does not advance the mission, which is to have as little contact with these people as possible,” Duer said. “It also deprives your employer from being able to have your back and protect you. If employees stay in the designated building and everything goes as planned, employees will have the least amount of contact with them as possible.”
Engaging employees at all levels in the planning and training process can help to gain buy-in and increase the likelihood that they will remain calm should they find themselves in this situation.
This article is provided for information purposes only. Readers should consult their own professional advisers for specific advice tailored to their needs. Information contained in this article may be subject to change without notice.
