Jun 15, 2017
Today, we have a topic that is extremely important, complex, and interesting for agriculture...immigration law. My guest is Sarah Thomas, an attorney at the New Mexico law firm of Noble & Vrapi, where she practices business immigration law. Sarah works with employers, including dairies in New Mexico, on business immigration issues. This episode is full of practical information and best practice suggestions for employers to consider.
We kick things off talking about the importance of employers complying with Form I-9 requirements. Critically, having all employees complete Form I-9 is required for all employers, whether or not they hire foreign nationals, to have forms on file for all employees for the required time limits (the longer of 3 years after hire, or 1 year after the employee ceases employment). Employers should ensure they use the most current Form I-9 (available here).
With respect to filling out the Form I-9, Sarah explains that employers should be careful to follow the rules listed on the Form I-9 when verifying required documents. There are three lists of documents. An employee must present either one List A document or one document each from List B or List C. The employer may not require a certain document within these lists. The employer must see the original document, no copies are allowed, in the presence of the employee. The employer should view the documents to ensure they reasonably appear to relate to the employee and appear reasonably to be valid. Sarah recommends that her clients not make copies of the documents presented by employees for their files. An employer should never backdate or alter Form I-9s.
Finally, Sarah offers tips for employers store I-9 forms together in one file, rather than in an individual file for each employee. She also recommends that employers destroy I-9 forms once the required retention period passes. Additionally, she cautions employers to be careful in classifying persons as either employees (I-9 required) or independent contractors (not required) and be sure their classifications are accurate.
What if ICE shows up at my farm?
First and foremost, Sarah advises that businesses need to think ahead and have a plan in place in case this does occur. Typically, if an audit is going to happen, there will be an auditor from the Department of Homeland Security and either an ICE officer or a federal marshal.
A business should train employees, including receptionists and front desk staff, not to chat with or give information to the auditor or officers. Instead, there should be one person designated to speak with the officers and ensure that everyone in the business knows who that person is. If agents arrive, employees should be friendly, but should not answer any questions and immediately inform the assigned representative that agents are at the farm.
Government agents are only allowed to go into public areas, areas included in a signed warrant, or in areas for which they have been given consent to enter. This brings up three important points.
First, Sarah advises employers never to consent to allow agents to go into private areas without a warrant and, importantly, employees should be told not to give consent as well.
Second, having clear delineation between spaces that are public and private is important. Without a warrant, agents may only go into public areas. So, if a barn was labeled "employees only" then the agents may not enter those private areas.
Third, if the agents have a warrant, it is important for the employer to view the warrant. A valid warrant will be signed by a judge. Without a judge's signature, the document is not a valid warrant. Employers may want to have an attorney view the warrant to confirm it is valid.
Finally, employers and employees should be aware of their rights, including the right to remain silent, in the event they are questioned by agents. Additionally, employees should never sign any documents if they do not understand the contents or taking the opportunity to talk with an attorney. Sarah provided a document helping folks understand their rights (see below).
As always, I asked Sarah my two final questions. She said that a law she wishes could be changed is that she wishes the US provided universal healthcare for citizens. For her restaurant recommendation, she suggests we try New Mexican food at El Bruno's, with locations in Cuba, NM and Albuquerque, NM.
Contact info for Sarah Thomas
Links to topics mentioned on the show
- I-9 Central (current Form I-9, instructions, and handbook for employers)
- US Department of Justice Immigrant and Employee Rights Section (formerly Office of Special Council) has an anonymous employer hotline for questions: 1-800-255-8155.