With President Trump’s recent inauguration, issues of immigration law have come to a head in workplaces throughout the country. As raids are already being implemented in a multitude of industries, employers need to understand their rights and obligations when the U.S. Immigration and Customs Enforcement (ICE) knocks on your door. Below is a summary of the recommended actions that employers should consider if they are the target of a raid or audit from ICE. Most importantly, employers should call counsel as soon as possible once they learn that ICE is conducting a raid or audit of their business.
ICE Raid
ICE may conduct an enforcement action, or raid, on an employer without notice. ICE officers will show up at your premises seeking to conduct a search and retrieve documents as well as to speak with employees. Should this occur, the actions listed below should be taken. Most importantly, key employees should be aware of these action items prior to an ICE visit, including hosts, receptionists, or other employees who are likely to be the first employees who the officers encounter should a raid occur. It is also recommended that a company representative be designated to handle questions and serve as the primary contact person with the ICE officers during or after a raid.
- If ICE officers arrive at the premises, the host/receptionist should immediately contact the company’s designated representative, who should then immediately contact counsel. The host/receptionist or company representative should inform ICE that counsel is being contacted. If counsel is able to come to the premises immediately, the company representative should request that the officers wait for counsel to arrive before proceeding.
- The representative should ask for identification and record the officers’ names and badge numbers.
- The representative should ask the officers if they have a warrant and review the details of the warrant, which to be valid should be signed and dated by a judge, include a time frame for the search, describe the premises to be searched, and a list of items to be searched and seized. Typically, these items will include payroll and time records, I-9 forms and employee identification documentation. Ask for a copy of the warrant and send it to counsel. You can accept the warrant but inform the officers that you do not consent to the search of your premises. The search will proceed, but this will allow you to contest the search later should you choose to do so. Please note that there is currently a debate as to whether an administrative warrant issued by ICE that is not signed by a judge is sufficient. If an ICE officer presents a warrant that is not signed by a judge, it is important to contact and consult with counsel immediately.
- If the officers do not have a warrant they may still enter into any public areas of the premises (bar, dining area, parking lot, lobby, waiting area, etc.), but cannot enter into any private areas without your consent. Similarly, if the warrant limits the areas that may be searched, officers may not search other areas without your consent. You should consider placing signage indicating certain areas as “private” to distinguish them from public areas in advance of any ICE raid.
- If officers attempt to search the premises beyond the scope of the warrant, inform the agents that you object to the search, but do not physically interfere with the officers’ search of the premises.
- Do not lie or provide false information to officers or attempt to destroy or hide any documents or items. Do not assist employees with hiding from officers or leaving the premises or encouraging them to do so.
- The company representative should follow the officers and document what they are doing, either by taking notes and/or recording video. The representative should log any items that are taken and ask the officers if copies of any documents can be made before they are taken. If the officers ask to take computers or electronic devices that are covered by the warrant, you can request that the officers image the devices instead of seizing them. If their seizure of any items will interfere with your ability to conduct your business, you should inform the officers and request that they not take the items but image/copy the items instead.
- Any locked areas covered by the warrant should be unlocked if requested by the officers.
- The officers may ask to speak with employees or move them into different areas to be spoken to. Do not interfere with the officers’ attempts to speak with employees. However, you do not need to assist the officers in their request by, for example, providing information concerning any employee’s immigration status, national origin, or by identifying any specific individuals that ICE may be looking for.
- You may tell employees that they can choose whether or not to speak with ICE, however, you should not direct employees not to cooperate with ICE or to refuse to answer questions.
- A raid may take hours. If any employees have any specific issues that may need to be addressed – such as medical or family issues – you can let the officers know and ask for their cooperation in accommodating the employees’ needs.
- You may ask the officers for a list of all items taken during the raid.
- Following the raid, the company representative should immediately document the details of the raid, including the number of agents present and names, actions taken, specific details of any requests made by the officers and the response to any such requests.
ICE Audit
Alternatively, ICE may conduct an audit of your I-9 and related documentation. ICE will provide you by hand delivery, FedEx, or certified mail, a copy of a notice of inspection. The notice of inspection will require you to provide ICE with copies of all requested records within three days of your receipt of a notice of inspection. It is important to immediately contact counsel upon receipt of a notice of inspection so that counsel can then contact ICE and attempt to negotiate a brief extension of time. If you have unionized employees, the union will need to be informed of the audit request.
The notice of inspection will likely ask you to produce all I-9 forms (and Form I-9 supporting documents from List A/B-C, if applicable) for your current employees and terminated employees within the I-9 retention period, a list of current employees, a list of terminated employees within the I-9 retention period, payroll records, E-Verify records (if you are on E-Verify and/or required to be on E-Verify), information regarding your I-9 electronic software and related audit trail, and information about the business and its ownership. If your I-9 forms are not currently organized in such a way that would allow you to retrieve and produce them if you receive a notice of inspection, we recommend taking the time now to ensure that your I-9 documentation is organized properly. Forms I-9 and the supporting documentation should never be comingled in an employee’s personnel file as it will make it more difficult to respond to an audit request in a timely manner.
Once the documents are sent to ICE, they will be reviewed, and ICE will inform you of the results of their audit following their review through a Notice of Technical or Procedural Failures. This process could take weeks or years to be completed. If no violations are found, ICE will provide you with a compliance letter.
If ICE determines that some individuals are unauthorized, you will be so informed through a Notice of Suspect Documents and then have 10 days to provide legitimate work authorization documents for these employees and/or terminate these employees and provide evidence of same. If ICE finds violations, penalties can range between a warning, to civil, or even criminal penalties for more severe violations. The amount of any civil penalty depends on several factors including the number of prior offenses, number of violations, size of the business, a determination of the good faith of the employer, the seriousness of the violations, and/or whether any violation is the result of the employment of unauthorized workers. Employers are entitled to challenge any alleged violations and/or penalties being issued through a hearing before an Administrative Law Judge.
Among the factors that ICE considers in determining whether an employer has acted in good faith is whether employees have been trained in I-9 compliance. It is recommended that before a raid or audit occurs that employers engage counsel to provide I-9 training and to conduct an internal I-9 audit that is protected by attorney-client privilege to address any issues to the extent possible before a raid or audit occurs.
Next Steps
At this this time, it is critical for employers to engage counsel to provide I-9 training as this is a mitigating factor with ICE — and may demonstrate good faith compliance if subject to an audit. As a best practice, employers should engage counsel now to conduct a proactive internal audit under the attorney-client privilege. Unfortunately, once ICE shows up with a Notice of Issue or warrant, it may be too late.
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