Is it illegal for Farm Commons to write a guide that helps producers without documentation form LLCs?!

That’s the question Farm Commons is hoping to get answered later this year as we prepare to translate our popular Farmers’ Guide to Business Structures into Spanish in 2023. We would like to add information on whether and how farmers without documentation can secure the protections of an LLC or a corporation. But, we’re keenly aware that by explaining the law’s opportunities and obligations, we may be violating the Immigration Reform and Control Act of 1986 (IRCA). This spring, the Supreme Court will take up a case considering whether the IRCA is an unconstitutional violation of the right to free speech under the First Amendment. Let’s explore the details of the situation.

How could the simple act of explaining how an individual without documentation can safely form an LLC be illegal? It is not against the law for a person without documentation to own a business, certainly. It’s quite possible for a person without documentation to secure the protection of an LLC without making themselves an employee of that business, which is something farm business owners do all the time. So, what gives?

The IRCA contains a provision that appears to criminalize all activity that could encourage persons without documentation to remain in the United States. Some prosecutors appear to feel that offering instructions as to how to legally structure an LLC with an owner without documentation would be “to encourage” that person to remain in the United States. This broad interpretation of the meaning of “to encourage” is certainly not adopted by everyone. Some courts have disagreed while others have agreed with such an interpretation. And at the same time, wouldn’t a restriction on someone’s ability “to encourage” someone else curtail their right to free speech, protected under the constitution? To the extent this statute prohibits an aunt from telling her niece without documentation, “I’m so glad you’re here to help me take care of the family,” that may violate the aunt’s right to free speech.

This spring the Supreme Court will take up a case intended to directly answer this question. Farm Commons will be watching closely as we design our own guides and resources.

For more information on the winding path this issue has taken to the Supreme Court docket, check the New York Times article here. Content may be paywall restricted. For more information on the IRCA and how it may limit organizations like Farm Commons, read this law review article. Free download.