Recently, with increased immigration enforcement in farm country, there has been confusion about exactly where federal immigration officers can go at a farm property. Generally, immigration officers can access any public areas of a business, including farms, that are ordinarily available to anyone. They cannot access non-public parts of the business without obtaining permission from the owner or manager in charge, unless they have a valid search warrant. This concept raised the question: what is public and non-public at a farm? Farms are all different, so specific situations will vary, but generally the main driveway and office areas of most farms would be considered public; while houses, sheds, barns, livestock and other production areas would be non-public. But what about open fields? Fortunately, federal law already provides the answer: private farm fields are not open to immigration officers without a warrant, unless located within 25 miles of the U.S. border.

Federal law addresses the standards for immigration enforcement activities in 8 CFR 287.8(f)(2) as follows:

“An immigration officer may not enter into the non-public areas of a business, a residence including the curtilage of such residence, or a farm or other outdoor agricultural operation, except as provided in section 287(a)(3) of the Act, for the purpose of questioning the occupants or employees concerning their right to be or remain in the United States unless the officer has either a warrant or the consent of the owner or other person in control of the site to be inspected. When consent to enter is given, the immigration officer must note on the officer’s report that consent was given and, if possible, by whom consent was given. If the immigration officer is denied access to conduct a site inspection, a warrant may be obtained.”

The exception underlined in the quote above generally grants immigration officers full access to farm fields located with 25 miles of the U.S. border. The relevant text from section 287(a)(3) of the Immigration and Nationality Act is codified in federal law at §1357(a)(3) as follows:

“Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant- …(3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States;”

So, if your farm is located with 25 miles of the U.S. border, then immigration officers have authority to enter private farm fields without permission and without a warrant in order to enforce immigration laws. Note, however, that even in this border zone they do not have authority to enter dwellings such as employee housing, without permission or a warrant. Farm operators who are concerned about designating public and non-public areas of their operations should consider appropriate signage. Private property signs could be placed on farm buildings and production areas, including strategic signs at entrances and access lanes for open farm fields. Signage could also be used at the main farm entrance and office area to clearly instruct visitors to check in at the office.

Finally, let’s consider the phrase included in the standards for immigration enforcement indicating that officers may not enter non-public areas “unless the officer has either a warrant or the consent of the owner or other person in control of the site to be inspected.” Consent of the owner is clear, but what about “other person in control of the site,” this seems vague and an immigration officer might consider any random employee nearby, to be in control of the site. Managers should train employees not to give permission to non-employees for any activity at the farm, and instead to direct them to an owner or manager with designated authority to make such decisions. Perhaps they could even escort the officer to the farm office or location of such a designated authority.

Federal immigration officers represent the U.S. Government and should be respected, but there are laws and regulations in this country that govern the behavior of citizens, residents, and authorities alike. Farm employers are well advised to understand those rules and take calm and deliberate action to ensure that everyone obeys them.

By Richard Stup, Cornell University. Permission granted to repost, quote, and reprint with author attribution.
The post Can Federal Immigration Officers Access Farm Fields? appeared in The Ag Workforce Journal.

With the new administration ramping up there are reports of increased US. Immigration and Customs Enforcement (ICE) and border patrol activity in upstate New York. This comes on the heels of well-documented and highly public ICE actions over the weekend. Employers are advised to take action immediately to be sure your business and employees are as prepared as they possibly can be for any immigration enforcement. Consider the following resources:

• I-9, Authorization to Work and Enforcement. As part of the Ag Workforce Central Office Hour on January 9, 2025, we hosted attorney Michael Sciotti from Barclay Damon law firm to discuss how employers can get into I-9 compliance and prepare for enforcement actions. Find the video and the presentation with links to resources at Ag Workforce Central.
• Another great resource from Fisher Phillips law firm is here: Incoming Border Czar Signals Heightened Immigration Enforcement: 5 Steps for Employers to Prepare for Anticipated Raids and Deportations. Be sure to read through the opening paragraphs about the new USCIS leadership and get to the practical steps for employers to take.

Of course, employees may also be affected by immigration enforcement actions. Employers should have a list of all employees’ emergency contacts to inform if the employee is picked up. Likewise, all employees should have a farm contact to inform if they are picked up by ICE.

The National Employment Law Project is an employee-centric organization that has also published guidance for employers and employees in “Employer Guide: What to Do If Immigration Comes to Your Workplace,” available in multiple languages. Among other things, this publication states the following advice for employees:

• Employees are not obligated to speak with ICE agents, and may best protect their rights by remaining silent.
• Employees should stay calm during an enforcement action.
• Do not run or otherwise resist, because running from ICE may indicate that immigration laws were violated.

Finally, be sure to view our I-9 resources.

By Richard Stup, Cornell University. Permission granted to repost, quote, and reprint with author attribution.
The post Prepare for Immigration Enforcement at Your Farm appeared in The Ag Workforce Journal.

When encountering rough weather, the sailing ship’s captain gave the order to “batten down the hatches!” It means to cover up the doorways and hatches in the deck to prevent seawater from rushing into the ship during the storm. Now is a good time to batten down your work authorization hatches with the possibility of rough seas ahead, because the incoming U.S. presidential administration has consistently emphasized “mass deportation” of unauthorized individuals in the country. No one should panic, campaign promises are not necessarily the same as real world action, but it is likely that employers will be affected by tighter enforcement in the years ahead. Start to batten down those hatches by revisiting your business process for documenting work authorization of new employees using the U.S. government’s Form I-9.

Revisit the work authorization process

All employers are required to verify that everyone they hire is eligible to work in the U.S. Employers must view documentation provided by the employee to establish the employee’s identity and work authorization. These documents must reasonably appear authentic and must pertain to the employee. The U.S. Citizenship and Immigration Services is the first place to go for I-9 information, find the I-9 form here. The form has changed frequently in recent years, so it’s a good practice to download a fresh, updated form from the website each time you hire a new employee. Instructions for form I-9 should be given to employees so that they can choose which documentation to provide, you can also download I-9 instructions in Spanish. Please note that the Spanish version of I-9 can only be used in Puerto Rico, but employers in other states can provide it as a reference for Spanish-speaking employees.

Make it a consistent procedure

Just understanding I-9 work authorization is not enough, you need a clear and repeatable procedure that will be followed every time a new employee is hired. It’s important to have a standard operating procedure (SOP) for verifying and documenting work authorization. An SOP will help make sure the job is done right, every time, so that your business has less legal risk in this area. Use this example I-9 SOP to understand the overall process and train employees who will complete this critical administration task. Note that section 1 of I-9 must be completed by the new employee, and section 2 must be completed by the employer or their authorized representative. Importantly, the section 1 must be signed and dated by the employee, and section 2 must be signed and dated by the employer, in addition the employee’s first day of employment must be entered in section 2 by the employer.

The New York Labor Roadshow is coming up quickly on December 11 and 13th, get all the details and register here.

By Richard Stup, Cornell University. Permission granted to repost, quote, and reprint with author attribution.
The post Batten Down the Hatches: It’s Time to Tighten Work Authorization appeared in The Ag Workforce Journal.