Immigration at the farm gate

GREEN BAY, Wis. — Labor is a top concern on many dairy farms. For farms that employ immigrants, the concern might be even larger with stricter enforcement of immigration laws being applied across the country.

At the Dairy Strong conference Jan. 15 in Green Bay, attorney Sam Moheban from Ruder Ware law firm discussed how employers, such as dairy farmers, can help keep their workforce intact during a session entitled, “Immigration at the Farm Gate: Compliance, Reform, and Real-World Readiness.”

Moheban said it is unlawful to knowingly employ persons in the U.S. who are not authorized to work or for employers to fail to comply with the employment eligibility verification process. The consequences for doing so can be severe, including large fines and potentially even jail time.

“If the government can prove you knowingly employed or continued to employ someone not authorized to work in the U.S., you’re looking at a fine between $716 to $28,619 per unauthorized worker, depending on history of violations and other factors,” Moheban said.

Criminal charges can also be laid against an employer. Immigration statutes alone allow for six months imprisonment for employers who have a pattern or practice of hiring persons not authorized to work in the U.S.

“It can get a lot worse than that,” Moheban said. “They have taken the position that knowingly employing and also providing housing to unauthorized workers could be a violation of federal criminal law called ‘harboring aliens.’”

The broadest issue surrounding immigration enforcement is I-9 compliance, and the fines for non-compliance are significant. Paperwork violations can occur if an I-9 form is only partially completed, is completed late, is completed incorrectly, or if there is an employee who does not have a form. Civil fines for paperwork violations range from $288 to $2,861 per worker.

“Paperwork violations are the lowest hanging fruit,” Moheban said. “You need to have strict policies and procedures to make sure the I-9 is completed correctly. There are also strict deadlines.”

If the government wants to see an employer’s I-9 documents, they can serve a Notice of Inspection. The employer typically has 72 hours to respond.

“If you reach out and request some additional time, there’s a good chance you can get an extension,” Moheban said.

Site visits are a concern Moheban has been receiving many calls about in the last year.

“People are concerned they may be the target of an ICE raid,” he said. “First off, most site visits —which is a previously unannounced visit by a government agent — are not raids. What’s far more likely is you receiving a Notice of Inspection. It’s a lot less work for the government.”

These notices should not be taken lightly. Moheban said when a dairy farm in the Dakotas received a Notice of Inspection last summer, it resulted in them having to terminate around 50 employees essentially overnight.

“That caused a serious interruption to their operations and just took one person delivering a piece of paper saying, ‘We want to see your I-9 forms in 72 hours,’” he said.

A physical security plan for the farm can help alleviate some of the fear associated with unexpected visits. Controlling access to facilities is important, Moheban said. Putting up physical barriers and signage warning people they are entering private property provide a layer of protection.

“You want to funnel visitors, which may include state and federal agents,” he said. “When you haven’t authorized someone to be on your property, you want to take control. You want to have someone who greets them, takes their information, figures out the purpose of their visit, and knows to escalate it to senior management or legal counsel if necessary.”

Moheban said employers and employees should have an understanding of their rights and be aware of Fourth Amendment protection from an unreasonable search and seizure; their Fifth Amendment right against self-incrimination; and the Sixth Amendment right to counsel.

Moheban said employers should also know the difference between judicial warrants, administrative warrants and subpoenas. An administrative warrant is issued on letterhead that says, ‘Department of Homeland Security,’ and is signed by a DHS officer or immigration judge.

“This does not have the same enforceability as a warrant signed by a local state or county judge or your federal judge if they want to enforce something like a warrant for removal of an alien,” he said. “You don’t need to provide access to private spaces with an administrative warrant alone.”

Moheban said even when dealing with a judicial search warrant, it is important to ensure authorities are acting within the scope of that warrant.

“It may have someone else’s business or someone else’s name or a different address on it,” he said. “It may be for a very specific item they’re looking for. You need to make sure they stay within the bounds of executing that warrant. And while you shouldn’t physically impede them, if they want to look at things that are beyond the scope, assert your rights and document it without physically getting in their way.”

Subpoenas are not warrants and do not require immediate compliance.

“If you get a subpoena, call your lawyer,” Moheban said. “You’re going to have time to try to squash it or modify it or reach out to the other side and figure something out.”

A variety of visas can be obtained by immigrants to work legally in the U.S., albeit on a temporary basis.

An H-2 Visa is designed for seasonal, temporary workers. This visa usually covers a 6–9-month period for an immigrant who is working for a specific employer. The employer must first show they have tried to hire a willing and able U.S. worker before bringing in a worker from abroad. This visa is limited to a maximum stay of three years, as many seasonal workers change employers within the U.S. as the seasons change.

A visa for an H-2A temporary agricultural worker has no cap on the number of visas that may be issued each year to provide agricultural labor. Whereas the H-2B temporary non-agricultural worker visa is capped at 66,000 visas issued per fiscal year prior to any supplemental  visas being authorized.

Dairying and related occupations are expressly listed as agricultural.

“This limits most occupations in the dairy industry to only using the H-2A visa versus the H-2B visa,” Moheban said. “There’s a problem with that as the H-2A is for temporary or seasonal work.”

Quite a few decisions have set the precedent that most, but not all, dairy industry activities are year-round and cannot be classified as temporary.

“This locks out employers, especially dairy producers, from being able to use any of the H-2 visas for the roles that probably want to use them the most,” Moheban said.

There are ways around this though, he said. For example, a dairy farm that also grows crops may be able to use the H-2 visa for that activity but not for their core dairying work.

Employers that get locked out of H-2 programs have to get creative. Moheban said there are other visa programs such as the J-1 visa, which is quite flexible. Through J-1 programs, people can be authorized to work in the U.S. for 12-18 months.

“There are quite a few different ways you can set up a J-1 program,” he said. “You’re going to need to provide training and evaluation and meet other requirements. You also need to provide real cross-cultural exchange opportunities, but many businesses are depending on foreign labor and don’t have a good alternative.”

Recent executive orders can have an impact on visa programs. For example, as of Jan. 14, the administration announced they are going to stop processing immigrant visas indefinitely from people from 75 different countries. In addition, Temporary Protected Status extensions have been rescinded for Venezuelan, Haitian, Nicaraguan and Afghan nationals, and the U.S. refugee program was suspended.

“Things could be a lot worse for ag employers,” Moheban said. “There were some high-profile worksite raids last summer in Nebraska and California. There has been a lot of talk about protecting farmers and hotels and the leisure industry.”

Moheban said parts of the administration have recognized these enforcement policies create problems not just for the U.S. workforce but for the industries that are particularly important to this country, including domestic food production.

“This is not the first or second time this has happened in a hundred years,” he said. “There have been patterns of periods of relaxed enforcement followed by a crackdown and renewed enforcement efforts, especially when it comes to immigrant enforcement related to agriculture. Every time that happened, there has been some form of amnesty because there is a real need, especially for agricultural employers, to make sure their labor needs are being met.”