Raids and Employment Verifications: An Employer’s Guide to Prepare for ICE Visits
On January 10th, U.S. Immigration and Customs Enforcement (“ICE”)[1] agents targeted nearly 100 7-Eleven stores nationwide in search of undocumented workers. The raids at the 7-Eleven stores are the result of the Trump Administration’s efforts to increase raids and compliance investigations. It comes as no surprise, therefore, that employers should take proactive measures in order to protect themselves and their employees against possible ICE visits.
Form I-9 Investigations
Since 1986, employers are required to verify each employee’s identity and employment eligibility pursuant to the Immigration Reform and Control Act (“IRCA”). The main enforcement tool available to ICE is the Employment Eligibility Verification Form I-9 (“I-9”). Employers must maintain for inspection I-9s for current employees, and with some limitations, for former employees as well.[2]
To start an investigation against an employer, ICE serves a Notice of Inspection (“NOI”). The employer would be provided with at least three business days to produce the I-9s along with other supporting documentation which may include payroll and business records. If an employer is found to have violated I-9 requirements, the employer might face civil fines or even criminal prosecution if the employer knowingly hired or continued to employ undocumented workers. For this reason, employers are advised to contact an attorney immediately if they receive a NOI.
Instead of waiting for a NOI, an employer should take proactive steps to make sure that the I-9s are in order. This can be done by conducting regular and periodic internal audits. Likewise, the employer should provide proper training to its staff regarding I-9 compliance. An attorney can visit the workplace and review the employer’s I-9 compliance program for effectiveness.
Worksite Raids
Unlike I-9 investigations, raids are made without any prior notice. The unpredictable nature of raids provide an incentive for employers to prepare a worksite enforcement action plan. As part of the plan, an employer should designate a company staff who would serve as the central point of contact for ICE. In the case of a raid, he or she should immediately notify an attorney.
It is important to note that ICE officers do not have permission to talk to employees or walk to the employer’s non-public areas without a proper judicial warrant.[3] In addition, employers are not required to turn over documents without a subpoena or a warrant. In other words, ICE cannot search a workplace and interview employees unless the employer consents or ICE presents a warrant.
During a raid, an employer has many rights that it can assert to protect itself and its employees. For example, an employer has the right to review the warrant to verify its validity and scope. A valid warrant must be signed and dated by a judge. It must include a time frame within which the search must be done, describe the places to be searched, and the persons or things to be searched for and seized. The employer can also have company representatives follow the agents around the premises and take notes. This will help the employer confirm that the search is limited to the scope of the warrant. In addition, the employer and the employees have the right to remain silent and speak to an attorney.
The employer should not try to help employees avoid arrest and detention. Indeed, the employer should not block or interfere with ICE activities. It should not provide false or deceptive information, deny the presence of named employees when the employees are actually present, or destroy documents. However, employers can help their employees by, among other things, providing “know your rights” booklets and promptly notifying their families if they are detained.
Finally, it is worth mentioning that the industries that are more likely to be raided or subject to employment verification are construction, manufacturing, agriculture, and hospitality. ICE has stated that it will continue to honor its “sensitive locations” policy. Under such non-binding policy, ICE will avoid enforcement actions in schools, medical treatment and health care facilities, places of worship, religious or civil ceremonies, and during public demonstrations. If you have any questions, feel free to contact our attorneys at Helsell Fetterman LLP.
[1] ICE serves as the investigative arm for the Department of Homeland Security (“DHS”). In some jurisdictions, state and local enforcement officers can also act on ICE’s behalf.
[2] Employers must keep the I-9s of former employees for at least one year from their date of termination or three years from their date of hire, whichever is the latest.
[3] If the worksite is a “public place,” ICE does not need a warrant to conduct a search.