Surviving An Ice Raid Or Audit: Preparation Is Key

Raids by the U.S. Immigration and Customs Enforcement (ICE) on workplaces are making the news daily, and immigration enforcement across the country has raised tensions at businesses across all industries and led to demonstrations across the country, most notably in Los Angeles. Raids are highly disruptive, often involving immediate inspections and potential detentions. However, raids are far less likely than enforcement audits. Regardless of what you may face, we thought it would be helpful to provide clients with a list of proactive steps you can take to minimize the chances that you’ll face an immigration audit or raid, as well as practical steps to consider should immigration officials arrive at your workplace.

Employer Obligations Under The Immigration Reform and Control Act

The Immigration Reform and Control Act (IRCA), enacted on November 6, 1986, requires employers to verify the identity and employment eligibility of their employees and sets forth criminal and civil sanctions for employment-related violations. The statute requires all U.S. employers to complete Form I-9, Employment Eligibility Verification, for every individual they hire to work in the United States, regardless of their immigration status. Employers cannot request more or different documents than are required by Form I-9 or reject reasonably genuine-looking documents. Employers must not knowingly hire individuals who are not authorized to work in the United States. Employers that commit immigration violations face significant penalties. Civil fines can be up to $2,861 per I-9 violation, or up to $5,724 for knowingly hiring undocumented workers. The fines can go up to $28,619 per worker for a company found to be a repeat offender. Individual business leaders can face criminal penalties of up to 10 years in prison and $250,000 in fines for knowingly employing undocumented workers. In addition, the government can seize the assets and profits of the company linked to the violation, or can bar the company from federal contracting.

Employers should take proactive steps to minimize the chances of ICE enforcement activity. The first step is to ensure that every employee hired after November 6, 1986, has a complete and properly filled out Form I-9 with appropriate supporting documentation on file. Use payroll records to verify that all required forms are on hand. We strongly recommend that you keep all I-9 forms for current employees in a single file so that if ICE requests to see these forms, you can pull out a single folder and show it to them, rather than being required to turn over personnel files for all employees. You must train your managers and HR staff on how to properly complete I-9 forms, recognize document issues, and take appropriate action if they suspect an employee may lack proper work authorization. Employers also need to regularly audit the I-9 forms and remedy any discovered discrepancies. If you need any guidance or assistance with these audits, let us know.

Homeland Security has an online electronic verification system utilized by many employers. Although not mandatory for all employers, using the E-Verify system can bolster compliance and demonstrate due diligence in verifying employee work eligibility and might also provide you a safe harbor or reduced penalties if a violation is discovered by ICE.

How A Company Should Respond to An ICE Raid

The second step you should take is to establish a plan for responding to a raid or other unexpected ICE visit. Designate a trained group of managers and human resources personnel to handle ICE visits, including contacting immigration and employment counsel, monitoring compliance with warrants, and tracking actions taken by ICE agents. This team should be trained to respond calmly and correctly under pressure and not to obstruct or become abusive to ICE agents. Select one member of management to lead the team. If a search warrant is presented, let the leader verify the validity of the search warrant by checking that it is signed by a judge and immediately provide a copy to legal counsel.

Employers should take proactive steps to minimize the chances of ICE enforcement activity. The first step is to ensure that every employee hired after November 6, 1986, has a complete and properly filled out Form I-9 with appropriate supporting documentation on file. Use payroll records to verify that all required forms are on hand. We strongly recommend that you keep all I-9 forms for current employees in a single file so that if ICE requests to see these forms, you can pull out a single folder and show it to them, rather than being required to turn over personnel files for all employees. You must train your managers and HR staff on how to properly complete I-9 forms, recognize document issues, and take appropriate action if they suspect an employee may lack proper work authorization. Employers also need to regularly audit the I-9 forms and remedy any discovered discrepancies. If you need any guidance or assistance with these audits, let us know.

Homeland Security has an online electronic verification system utilized by many employers. Although not mandatory for all employers, using the E-Verify system can bolster compliance and demonstrate due diligence in verifying employee work eligibility and might also provide you a safe harbor or reduced penalties if a violation is discovered by ICE.

How A Company Should Respond to An ICE Raid

The second step you should take is to establish a plan for responding to a raid or other unexpected ICE visit. Designate a trained group of managers and human resources personnel to handle ICE visits, including contacting immigration and employment counsel, monitoring compliance with warrants, and tracking actions taken by ICE agents. This team should be trained to respond calmly and correctly under pressure and not to obstruct or become abusive to ICE agents. Select one member of management to lead the team. If a search warrant is presented, let the leader verify the validity of the search warrant by checking that it is signed by a judge and immediately provide a copy to legal counsel.

If ICE officials have a valid search warrant when they arrive, they are entitled to immediate access to your premises and records. Let the leader observe and document ICE’s actions while remaining cooperative. This includes keeping track of all items ICE takes, via, taking photographs or making copies. The company and the members of the ICE response team should avoid any action to hide employees or shred documents or provide false information. Employees should be free to speak to ICE agents if questioned, but are not required to do so without legal counsel.

Even in non-union workplaces, immigration enforcement may trigger protected activity under the National Labor Relations Act by employees, such as staging a walkout or protest. Employers should tread lightly to avoid mishandling such protected activity by employees. Also, if ICE conducts a raid, the company needs to determine whether a public statement is necessary and how best to communicate the event to maintain its business’s reputation.

How A Company Should Respond to An ICE Audit

The most common way in which a business might end up interacting with enforcement officials is through an audit. An ICE audit, often initiated through a Notice of Inspection, requires employers to produce I-9 forms and additional records within three (3) days. Along with I-9 forms, ICE may request payroll records, E-Verify confirmations, ownership information, agreements with staffing companies, and 1099s. The employer needs to ensure that all requested documents are organized and accurate. If you receive such a notice, contact us, as we can help you audit I-9s, make allowable corrections to minimize penalties and, if necessary, negotiate a short extension for gathering records or engage the assistance of specialized immigration counsel. We can also work with ICE officials to make the audit move more quickly and keep ICE agents away from the worksite.

Audits can take two weeks up to two years. Once the audit concludes, ICE will inform you of any issues. The best result is a letter indicating that you are in full compliance. If the agency finds only minor technical or procedural violations, you will be allowed to correct them within 10 business days. If ICE identifies serious violations, such as unauthorized workers, you’ll receive a Notice of Suspect Documents.

If you follow these suggestions, and are ready to demonstrate your compliance with IRCA at all times, you can cross-off worrying about an ICE raid. If it happens, you are ready!

If you have any questions about what steps you need to take to get ready for the implementation of the new rule, feel free to contact Jay Rollins or Debra Schwartz by calling  404.844.4130.