Agriculture businesses who are reliant on immigrant labor should be aware of their rights and responsibilities if U.S. Immigration and Customs Enforcement (ICE) agents arrive at the door.

In a webinar presented by Western Tree Nut Association, Rebecca Hause-Schultz of Fisher Phillips noted that the Trump administration has rolled back previous directives that limited immigration enforcement in sensitive areas such as hospitals, places of worship, and schools, broadening the scope of potential enforcement actions.

Roger Isom, WTNA president, noted that packing houses and other agricultural businesses have been targeted by ICE in the past. He said that the raids that occurred the last week of June appear to be only seeking known criminals, so it appears the administration has reversed course yet again.

There are three reasons why ICE agents come to agricultural worksites: for a workplace raid, to detain a specific person or to start an I-9 audit.

She stressed that ICE officers conducting worksite raids or detaining a specific person must have a judicial warrant that is signed by a judge and has a specific scope of search and seizure. Without a warrant, ICE needs an employer’s permission to enter the premises.

An ICE raid is a surprise enforcement action where agents enter a workplace, home or public area to detain individuals suspected of being undocumented. These raids often involve arrests and detainment. They can target specific individuals or a group based on an ongoing investigation. An ICE audit is a review of an employer’s I-9 employment eligibility forms to ensure employees are authorized to work in the U.S. Employers usually receive a Notice of Inspection prior to the audit.

Hause-Schultz advised businesses to develop a Rapid Response Plan in advance so that all company representatives know how to respond if ICE comes to the workplace with or without a warrant.

One person should be designated to speak with ICE agents. All employees should know who this person is and ensure all documents and contact requests are directed to that person. All staff should know they do not have authority to permit ICE agents onto the property.

No trespassing signs should be used to signal areas that are not intended for public use.

The designated spokesperson should make sure ICE complies with exactly what is written in the warrant. Employees have the right to stay silent and request a lawyer.

Hause-Schultz noted that employers and employees have rights under the law regardless of status.

Under the Fourth Amendment, a person being detained may ask if they are free to go. If the answer is yes, they can walk away. If the answer is no, agents must have a reasonable suspicion.

Hause-Schultz noted that ICE agents with an administrative warrant are allowed to make arrests or seizures, but not to search. The warrant does not authorize an agent to enter a private space or home without consent. An ICE warrant does not provide probable cause of a crime or meet Fourth Amendment requirements for an arrest.

She advised employers that if ICE agents arrive at your workplace, ask for a copy of the warrant and read it. Anything ICE reviewed, accessed or seized should be documented with date and time. Photos should be taken of names and badges of officers. If recording, stay a safe distance away and announce the encounter is being recorded.

When it comes to I-9 forms, there are basic requirements for employers, but there are also unfair documentary practices that must be avoided. For example, the employee has the choice of their Form I-9 documents to present. Employers must accept a document presented by the employee if it appears to be genuine and relates to the person presenting it. The document must be original.

The basic requirements for an I-9 form are completion by the employee no later than the start date of employment. The employer must complete their portion of the form by the end of the third business day after the employee starts work.

Hause-Schultz noted that a Form I-9 must be on file for all current employees.

Penalties for paperwork violations can be up to $2,861 per violation. Knowingly hiring unauthorized workers can also result in fines.

Fisher Phillips has a Rapid Response hotline for employers at 877-483-7781.

For additional guidance, visit the U.S. Immigration and Customs Enforcement website on worksite enforcement.