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Immigrant labor: Policy changes, some hype heightening dairy concerns

Progressive Dairyman Editor Dave Natzke Published on 20 February 2017

Policy changes and media attention regarding the Trump administration's executive orders has heightened concerns among dairy producers who hire immigrant labor. To address some of those concerns, the American Dairy Coalition (ADC) hosted an ”Immigration Update: Preparing for ICE Visits” webinar, Feb. 17.

The webinar featured Kelly Fortier, immigration attorney with Michael Best & Friedrich LLP. She described ongoing activities of the U.S. Immigration and Customs Enforcement (ICE) agency, and outlined steps dairy producers can take to limit or avoid liability if they are subject to an ICE investigation.

People on heightened alert are sometimes getting misleading information, especially through social media and online news sources, Fortier said. She is currently getting several calls based on rumors. She urged producers to watch news sources they trusted, and look at official government press releases and non-partisan data.

Despite the increased attention, ADC executive director Laurie Fischer and Fortier said ICE officials are following practices similar to those followed under the Obama administration – with a few exceptions.

“It’s important to remember President Obama, especially in his first term, really amped up enforcement,” Fortier said. “No one deported more people than President Obama. He backed away from that broad enforcement toward the end of his presidency, looking at specific threats. What we’re seeing now versus a year ago, there’s a lot of difference. But if we’re looking now versus 7 years ago, I suspect we wouldn’t see much of a difference.”

What has changed?

Two of President Trump’s executive orders related to immigration – the travel ban (currently blocked by court rulings) and enhanced border security related to construction of “the wall” – have little direct, immediate impact on dairy producers hiring immigrant labor. A third order, withholding some federal funds for “sanctuary cities,” also isn’t likely to affect employers in rural areas.

Most directly impacting dairy employers and their workers is an executive order related to “Enhancing Public Safety in the Interior of the United States,” Fortier said. Under that order, Trump called for the hiring of 5,000 more Customs and Border Patrol (CBP) officers and 10,000 additional ICE officers.

There is currently no funding mechanism for those hirings, which must be provided by Congress. In the event funding is provided, dairy farms aren’t likely to see visits from CBP officers unless they are located near international borders. However, the presence of additional ICE officers, those involved in investigating, arresting and detaining individuals without proper legal status, will likely be felt.

“I think it’s pretty clear we’re going to see more enforcement officers in the coming year,” Fortier said. “With more enforcement officers, it’s also predictable we’ll see more arrests. We’re also likely to see more detentions and removals.”

Another change under the order is the interpretation of what constitutes a “criminal” subject to removal/deportation. While the announced intention is to apprehend and remove illegal immigrants who have committed serious crimes, the definition has been broadened and is still not entirely clear.

Deportation priorities have been broadened to cover anyone charged and/or convicted of any criminal offense, potentially including some misdemeanors, or anyone who has “committed acts that constitute a chargeable criminal offense.”

The broader definition covers anyone engaged in fraud or willful misrepresentation to a government agency, including using someone else’s Social Security number or false identity to get government benefits. Whether or not that includes someone who used false identity on a Form I-9 or W-4 to gain employment remains to be determined.

“Anyone who has come into the country illegally can expect to fall under this order,” Fortier said. “It doesn’t mean they will be picked up, or that enforcement agents will be looking for everyone. It just means technically they are covered by this order.”

Local enforcement empowerment

A provision likely to impact immigrant workers and agricultural employers is reinstitution of the “Secured Communities” initiative, first instituted by President George W. Bush. That initiative, suspended by President Obama, allows local law enforcement/police departments to serve some immigration functions for the federal government, including investigating, apprehending and detaining individuals until ICE could step in. Fortier expects more local law enforcement involvement through such things as traffic stops.

Another change is a reduction in the standard for detaining people. Under the order, law enforcement can detain someone if they have any “reason to believe” the person is removable; this standard is lower than the “probable cause” standard used under President Obama’s enforcement program.

Much of the publicized ICE activity has centered around urban areas. About 75 percent of the ICE arrests have been people with criminal convictions. While she hasn’t seen a big initial change in rural enforcement, Fortier said it will be something to monitor.

Thus far, most arrests have occurred in the homes of suspected illegal immigrants, with few worksite raids. That may change, however, especially with some administration and congressional leaders seeking not only to apprehend illegal immigrants, but also punish their employers.

“We’re going to see more worksite enforcement,” Fortier said.

“We’ll see more investigations into employment situations, more officers picking up individuals at their work sites, and more Form I-9 efforts.”

Prepare for an ICE visit

Fortier said it is important to prepare protocols and dairy staff for handling an ICE visit, whether it’s for a workplace raid or simple I-9 audit.

“Handling an ICE visit is similar in many respects to how you would handle any government investigator showing up on your farm,” she said.

Fortier encouraged dairy producers to put together simple written procedures or protocols outlining who is going to greet and meet with the investigator. Whoever might be the point of first contact should know the protocols, and no one else should speak to the investigator. A list should contain telephone numbers/emails of everyone who needs to be contacted, in case they are off-site.

“ICE needs authorization to walk through a property in most situations, but they do not necessarily need that authorization from an owner,” Fortier said. “That’s why it is important to identify the person who can give that consent in your written protocols.”

If the investigator arrives with a specific search warrant, ask whether an owner or attorney can be contacted. Read the warrant carefully and be cooperative.

“You’re within your rights to see the warrant or subpoena,” Fortier said. “Your place of business is private property, not a public place. There’s an expectation of privacy.”

Obstructing an investigator could result in criminal liability or sanctions. However, an employer also has rights.

“If an ICE agent shows up, they’re probably not looking for an employer or manager, they’re there for a specific individual,” Fortier said. “It’s important to ask why the investigator is there. Is it a worker investigation or an employer investigation? Are they there to look for documents, or to look for a person? Confirm what agency they are from. Get their identification and badge number. Ask them for a business card, because it may be important to contact that person again regarding what happened during the investigation. Ask them if they can wait until you locate an owner or high-level manager. Reach out to an attorney, to see if they can at least participate in the investigation by phone. Follow your protocols.”

Investigators should be asked to wait in a normal waiting area, not permitted to walk around production areas, in an area where there are your employees, livestock and equipment. Not only is that a safety issue, but the investigator has no right to those areas without a specific search warrant. Accompany agents at all times when they are on your property.

If the investigator has an arrest warrant for a specific individual, Fortier recommended finding that individual and bringing them to the ICE officer.

“Do not warn the individual to run, or discourage managers or other employees from cooperating,” she said. “If you are uncooperative, you’re asking for more trouble than what you want to deal with.”

If the warrant seeks employee documents, investigators should not be allowed access to all personnel files unless specifically identified.

ICE officers are allowed to take original documents from your place of business.

“These visits can be nerve-wracking,” Fortier said. “It’s very important that you make copies of whatever they are taking so you have a record of what they have.”

Form I-9 audit advance notice required

If an ICE investigator wants to conduct a Form I-9 audit or review I-9 forms, they’ll likely have a “notice of inspection,” many times with a subpoena attached. Other requests may include payroll lists or quarterly wage reports. When it comes to I-9 forms, investigators must provide a three-day advance notice.

Although producers can turn over I-9 forms immediately, Fortier encourages producers to utilize the three days to contact an attorney, reviewing forms to see if any corrections are needed before they are turned over to the government.

Conduct internal audits

To minimize potential liability, Fortier recommended conducting internal audits of I-9 forms at least annually. The audits should not be done by the person who normally fills them out. If producers aren’t comfortable with that process, have an attorney audit them.

To conduct an internal audit, pull the most recent payroll and use it to confirm everyone on the list has a Form I-9.

Employers must keep I-9 forms from three years after the date of hire and/or one year after employment termination, whichever is later. Technically, ICE can ask for old I-9 forms, although that’s very rare, Fortier said. They almost always look at your current payroll and I-9 forms.

Make sure the forms are fully completely, and signed and dated by both the employee and the employer representative.

If mistakes are found, make and identify changes to limit liability. Do not use “white-out” or backdate forms – giving an indication there’s something to hide. Instead, cross out the wrong information, make the corrections and initial and date. Attach a brief note on why the corrections were made.

If there are lots of changes, make them on a separate Form I-9 and attach it to the original.

Fortier reminded webinar participants new I-9 forms were required effective at the end of January 2017 for all new hires. Be alert to any documents with expiration dates requiring reverification.

It’s also a good idea to have policies in place related to employment verification. If an employee shows up with without proper documentation, is it the business policy to put them on unpaid leave and take them off the work schedule, or is there employment terminated immediately. If a worker shows up with a “new” identity, are they allowed to continue working, or told to leave?

Train anyone on your staff who deals with I-9s or hiring, including not only the office staff, but also the day-to-day supervisors.

“Put your organization in the best position to avoid penalties or future investigations,” Fortier said.

Fortier said dairy producers are currently not in a good position to access legal immigrant labor, due to existing restrictions on work visas.

While the White House has control over enforcement standards, Congress must come up with workable programs, including expanded or new H2-A or state-based visas.

“If you want to fix the problem overall, you have to fix the laws,” she said.

Fischer said ADC, a lobbying organization representing the interests of dairy producers, is currently following four immigration reform bills in Congress. “I don’t know if there’s one bill that fixes our issue,” Fischer said. “If you understand policy in Washington, things can change in 5 minutes. ADC is not married to one bill. We will work on any and every bill that will get us to a place where we can ensure a reliable labor force for our dairy farmers and dairy industry.”

Read also:

Immigration reform a ‘100-day’ priority, but not dairy, agricultural workforce

Dairy Policy Review: Department of Justice increases Form I-9 violation fines

Dairy Policy Review: State-based worker visa program endorsed by American Dairy Coalition

New year, new Form I-9  end mark

Dave Natzke
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