Penn State attorney Brook Duer recently provided tips for employers concerned about an encounter with Department of Homeland Security (DHS) or the U.S. Citizenship & Immigration Service (USCIS).
Duer stated that the information he provided should be considered guidance and not legal advice.
“The two ways you would have an encounter [with federal agents] are for a Form I-9 audit or an Immigration and Customs Enforcement raid,” said Duer, emphasizing that property owners and employees have rights in such situations. “Agents of the federal government are checking work authorization of employees.”
Employers should protect themselves and ensure there are no violations by establishing a relationship with an attorney to be prepared for the potential of an I-9 notice.
“You only have three days to get things together,” said Duer, explaining the I-9 procedure. “Be sure you’re doing it right. Have someone who can provide assurance that you have read the papers correctly and are providing sufficient records to satisfy what they’re asking for. The penalties are steep.”
Employees may also need legal counsel, but it should be someone other than the employer’s attorney.
The Form I-9 work authorization proof is provided by an employee to an employer. I-9 proof applies to every employer and to U.S. and non-U.S. citizens. Verification is made through the employer that they have seen employees’ documents and that documents are authentic.
Employers must retain Form I-9 for three years after the employee has been hired, or one year after the employment relationship has been terminated – whichever is longer. I-9 forms must be filed separately from employment files, and if audited, employers must present the filed form.
The Form I-9 verification process usually begins with a written notice in the mail, but if authorities show up in person to present an I-9 notice, employers still have three business days to produce documents.
An ICE raid should include the execution of a search warrant. In this case, ICE has information about a specific employee, and they’ll show up to look for the employee on site. If ICE appears without a search warrant, the property owner is not required to cooperate in any way, including allowing a search of the premises.
The warrant must state exactly which buildings authorities want to enter, and the employer should make sure only specified buildings are entered. The warrant should state the time authorities are allowed to enter and should also outline what is allowed to be taken, such as specifically named persons or records other than I-9 forms.
Duer said it’s important for property owners to stand up for themselves and to be aware of what an I-9 or ICE visit might be like.
“They may start with requesting I-9 forms, but if on the same visit they enter the property and ask for specific person or people, they must have a warrant,” he said. “You don’t have an obligation to let them on the property to look for someone if they don’t have a warrant.”
Authorities will ask for work records such as timesheets showing when certain people worked for you. They will match the dates and periods of time covered by the I-9 forms with the times an employee worked and received a paycheck. Authorities may initially request I-9 forms then follow up with other information relating to specific employment records that correlates to I-9 forms.
Establish I-9 audit protocol for all employees. “Who’s going to talk with the auditors and deal with them directly?” said Duer. “That person should be rehearsed and practiced. Perhaps someone will document what’s happening – collect the names and badge numbers of those who show up. Establish protocol for notifying employees, either those who may be there at the time or all employees. You need to have a process to tell them what’s going on.”
Someone on the farm should periodically check I-9 files to ensure forms are correctly completed – improper recordkeeping is part of what agents are looking for.
Duer emphasized how things can go wrong without having established and protocols that have been practiced by the entire workforce. Ensure someone is responsible for keeping current employees under control.
“Depending on the operation and the situation, you might want to say ‘If we get a visit, everyone reports to a particular building,’” said Duer. “It’s as important to have your employees segregated in a certain place until the event is over as it is to cooperate with agents.”
Employees and farm family members should be instructed to never have casual conversations, volunteer information or provide access to documents to someone who shows up for an I-9 audit. Ideally, one person is the point of contact. Employees should understand that they shouldn’t have conversations with federal agents or volunteer to produce any documents.
Appropriate farm signage may help prevent serious problems. Consider marking property regarding what’s open to the public and what isn’t.
“Agents have the ability to just stroll into any portion of the property open to the public,” noted Duer.
If the business isn’t open to the public, it’s still important to mark it as “private property” so if agents show up, it’s clear they are not to go beyond a given point. Signage that states “Visitors must report to the office” presents a clear message and should prevent anyone from wandering around.
Duer suggested having all the same protocols in the event of an ICE raid where a warrant is presented.
“They may be searching barns and other places so you need to be attentive about having employees in one area and keeping them there,” he said. “It’s going to disrupt your workday.”
He added that employees won’t be relaxed during a visit, and emphasized the importance of having a single location for them to wait until the event is over.
“Establish protocols and make sure employees know what those are – particularly those who will be responsible for things in the event of an I-9 audit or an ICE raid,” said Duer. “Conduct internal reviews of your I-9s routinely so you know what’s in your files.”
For comprehensive information on Form I-9, visit uscis.gov/i-9-central.
