Since late January, workplace immigration audits and enforcement actions have been conducted across several industries, including hospitality, agriculture, construction, health care, and manufacturing. Employers should understand their rights and obligations when U.S. Immigration and Customs Enforcement (ICE) appears at their business. Failure to prepare can result in severe consequences, including fines, arrests, operational disruptions, and damage to your brand. Below are best practices for employers to avoid being caught flat-footed should ICE arrive.
ICE Audits
Employment Authorization Requirements
U.S. employers are required to verify the identity and employment eligibility of their employees. The verification process requires the completion of Form I-9 (Employment Eligibility Verification) and the review of employee documents that establish their authorization. Proper completion of the I-9 and compliance with record-keeping and reverification procedures demonstrates that the employer has not knowingly hired unauthorized workers.
I-9 Record-Keeping
Employment verification records may be maintained as paper files or in digital format via electronic I-9 systems. Many states now require certain employers, especially larger companies and those with government contracts, to participate in the federal E-Verify program. E-Verify is a Department of Homeland Security system that compares an employee’s I-9 information with Social Security Administration records to confirm employment authorization.
Antidiscrimination Provisions
Separate provisions of the employer sanctions statute bar employers from engaging in discriminatory application of I-9 requirements. Inquiries into a prospective employee’s nationality or immigration status, and requests for excessive documentation, are not allowed.
Penalties and Fines
Failure to comply with I-9 requirements may result in civil penalties, including fines, debarment, injunctions, and potentially criminal liability for pattern and practice violations.
Audit Procedures
ICE is responsible for enforcing the employer sanctions system. Investigations may be initiated by ICE or by complaints from whistleblowers or former employees. This process begins with the service of a notice of inspection, which must allow the employer a period of three days to produce the requested I-9 files. ICE has discretion to extend the three-day period.
Upon inspection of the I-9 documentation, ICE issues a written notice of findings. The findings may range from a notice of inspection results, which notifies the employer that its records are in compliance, to a notice of suspect documents or procedural failures, to a notice of intent to fine for substantive or continuing violations. Findings may be contested by requesting a hearing before an administrative law judge or by negotiating a settlement agreement with ICE.
Best Compliance Practices
- Designate an Immigration Compliance Officer. Employers should appoint an immigration compliance officer to establish and implement an I-9 policy. Important features would include segregation of I-9 records from personnel records and the establishment of a tickler system for reverification.
- Conduct an Internal Audit. An internal audit of procedures and documentation can identify deficiencies and correct any technical violations. Voluntary remedial action demonstrates good faith, which can help obtain favorable terms in settlement discussions.
- Determine the Best I-9 Platform. Employers should review their existing I-9 system to determine whether paper or electronic records are appropriate for the organization and whether participation in E-Verify is mandated by federal or state law.
- Establish a Training Program. Government immigration policy changes often and with little notice. The termination or extension of immigration benefits programs such as Temporary Protected Status (TPS), Deferred Action for Childhood Arrivals (DACA), and Parole can immediately affect the employment eligibility of employees holding status under these programs. Human resources personnel should be trained to identify the status that provides eligibility, as well as the forms of documentation issued to program beneficiaries.
ICE Raids
ICE may conduct an enforcement action (“raid”) on an employer without notice. ICE agents and law enforcement officers will arrive at your business, facility, or jobsite seeking to conduct a search, retrieve documents, and speak with employees.
Advanced Preparations
Advanced preparation is key to effectively responding to an ICE raid. Employers should consider the following steps when preparing for a raid.
- Develop a Written Response Protocol. Employers should have a written protocol and educate employees on it, including practice exercises. Front-line employees should know whom to contact and how to address the agents upon arrival. A company representative should be designated to handle questions and serve as the primary contact with ICE agents and company legal counsel during a raid.
- Designate Private Areas in Writing. Because ICE agents cannot enter private areas without a valid judicial warrant or the consent of the employer, designate which areas of the facility are private and ensure they are marked “private” or “employees only.”
- Educate Employees on Their Rights. Employers may also educate employees on their rights during an ICE raid or encounter. These rights include answering agent questions, remaining silent or refusing to answer questions, or requesting to speak with a lawyer and having a lawyer present during the interview. Employers cannot force an employee to speak with agents or to avoid speaking with them; it is the employee’s right to choose.
When ICE Arrives
The events during a raid may be stressful; rely on your plan.
- Contact Company Representative and Counsel. Front-line employees should immediately contact the company’s designated representative, who should then immediately contact the company’s legal counsel.
- Company Representative Responsibilities. The company representative should request identification from ICE agents and record their names and badge numbers. It is also advisable to request the name of the supervisory ICE official. The representative should ask agents what legal document(s) they have and request to see those documents. This will enable a careful review by the company’s legal counsel.
- Comply With Valid Judicial Warrants. Compliance with a judicial warrant is mandatory and should not be interfered with. A judicial warrant is a document signed and dated by a federal judge. It will designate a time frame for the search, describe the premises to be searched, and list items to be searched and seized.
- Searches Without a Valid Judicial Warrant Require Company Consent. If the warrant limits the areas that may be searched (or does not cover the premises or jobsite where ICE agents have arrived), or if there is no valid judicial warrant, agents may not search areas outside the scope of the warrant without the company’s consent. If agents attempt to search the premises beyond the scope of the warrant, inform the agents that the company does not consent to the search, but do not physically interfere with the agents’ search of the premises. It is critically important to rely on advice of the company’s legal counsel.
After the Raid
- Following the raid, the company representative should immediately document the details of the raid, including the number of agents present, their names, actions taken, specific details of any requests made by the agents, and the response to those requests. The representative should log all items taken.
- Any sensitive materials accessed by ICE agents should be secured.
- Employers should communicate with the families of any affected employees if any workers are detained.
Conclusion
With the current focus on immigration enforcement, employers must be prepared for potential ICE actions, including audits and enforcement raids. Between costly fines, negative press, and disruptions to your workforce and customers, these encounters should be treated seriously. Advanced preparation can help your business ensure compliance with employment and identity regulations and educate key employees to respond effectively when ICE agents come knocking.
