Last year, I wrote an article highlighting President Trump’s commitment to vastly increasing the number of Immigration and Customs Enforcement (ICE) worksite investigations. Recent events confirm that President Trump has not only remained true to his word, but that he is doubling down on this policy. For example, recently ICE agents raided seven different food processing facilities and arrested 680 undocumented workers in Mississippi in an unprecedented move.
Employers need not fear an ICE visit, or even an ICE “raid,” provided they are following best practices. Nevertheless, it is important that employers be prepared in the event they are visited by ICE.
First, it is important to distinguish the two bases for an ICE visit. The typical visit is for the purpose of a Form I-9 audit, which is preceded by a Notice of Inspection giving the employer three business days to prepare. However, ICE may also arrive without notice to execute a warrant to arrest suspected immigration law violators. An employer’s response is different for each.
Preparing for a Form I-9 Audit
Upon receiving a Notice of Inspection, an employer should:
- Designate the person in charge of responding to ICE’s requests and speaking with agents.
- Contact internal or outside legal counsel and decide what role counsel will play in the audit.
- Begin collecting its Forms I-9 and, if it has not already done so, segregate all other records that are unrelated to the Forms I-9 and therefore not subject to inspection. The more orderly the records are presented, the quicker the audit is likely to go.
- Pull a headcount report and compare against the Forms I-9 on file. If there is a discrepancy, the employer should prioritize identifying the workers with missing Forms I-9 and take corrective action.
- Review any internal audit documents and ensure that identified errors have been corrected.
- Time permitting, review any new Forms I-9 completed since the last internal company audit to identify errors and correct as needed.
Once ICE arrives, the employer’s designee should present the Forms I-9 and be available to answer any questions. Generally, if these steps are followed and the employer has been diligent in performing its Form I-9 duties, this should be a relatively minor affair for the company. Then, the employer should promptly respond to any subsequent correspondence received from ICE after the audit.
Preparing for an Unexpected ICE “Raid”
Employers that are diligently performing their Form I-9 duties are unlikely to face this issue, but if ICE does arrive with a warrant to potentially arrest workers, there are several important steps to take:
- Immediately contact legal counsel.
- Inspect the warrant to ensure it is signed by a court and that the agents are within the proper time and scope of the warrant.
- Confer with counsel regarding the legality of the warrant. Without a valid warrant, ICE agents can only enter the public areas of an employer’s facility. And with only an administrative arrest warrant, ICE can only enter the nonpublic portions of an employer’s facility with consent.
- An employee should accompany each ICE agent at all times to observe, but not interfere with, their actions. However, if an ICE agent is attempting to violate the scope of the warrant (i.e. by entering a nonpublic area without the proper warrant), the employee should object to the agent.
- The employer may advise employees that they can choose to speak with ICE agents or not, but should not advise them whether to do so.
- The employer should document all records given to ICE, obtain receipts for items taken by ICE, get contact information for the lead ICE agent, and prepare contemporaneous documentation memorializing the events (particularly any objections to ICE attempts to exceed the scope of its warrant).
The Bottom Line for Employer
Employers can avoid many of these issues by simply being proactive in maintaining their Forms I-9. In addition, it would be prudent to incorporate the tips in this article into a policy and train Human Resources personnel on the policy so that if the employer is contacted by ICE, it is immediately able to put these tips into action. Although a visit from a governmental authority is disruptive, following these tips can prevent such a visit or at least ensure it is minimally invasive.