Under the current administration, immigration enforcement has significantly increased, with executive orders expanding the authority of Immigration Customs and Enforcement (ICE) to arrest and detain undocumented individuals. Although ICE has primarily focused on individuals with criminal backgrounds, the agency’s attention is now turning to enforcement actions at businesses.
Employers across industries – especially those who rely on foreign labor pools –such as hospitality, agriculture, construction, healthcare, and manufacturing, should be prepared for workplace audits and surprise ICE raids. Failing to prepare for an ICE audit or raid can result in severe penalties, operational disruptions, and damage to a company’s reputation. It is critical for employers to understand the process and take proactive steps to ensure compliance.
What is an ICE Audit?
An ICE audit is a formal inspection by ICE to verify an employer’s compliance with federal immigration laws, particularly concerning employee work authorization. Under the Immigration Reform and Control Act of 1986 (IRCA), employers are required to verify the employment eligibility of all new hires by completing Form I-9. This form verifies the identity and eligibility of employees to work in the United States.
In advance of an audit, employers usually receive a Notice of Inspection (NOI), granting them three business days to produce their I-9 forms and supporting documentation. ICE reviews these records to ensure that employees are properly documented and authorized to work. If discrepancies or violations are found, ICE may issue warnings, fines, or criminal penalties for severe violations, such as knowingly employing unauthorized workers.
Preparing Your Business for an ICE Audit
Employers can minimize the risk of penalties and ensure compliance by proactively preparing for an ICE audit. Here are two major concepts to keep in mind:
- Maintain Accurate Records and Establish Consistent Internal Practices.
The best way to prepare for an ICE audit is by implementing clear and consistent practices with respect to I-9 collection and recordkeeping. For example, employers should ensure that the employees who are responsible for reviewing and accepting I-9 forms are properly trained about valid documentation. All forms should be completed correctly and stored for the required retention periods. This includes rectifying missing or incorrect data and ensuring proper filing. A secure, organized recordkeeping system allows for easy retrieval of documents during an ICE audit. Participating in E-Verify, a voluntary system for verifying employees’ work authorization, provides an additional layer of security. Employers may also consider reviewing ICE’s Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits. - Establish an Immigration Compliance Protocol in the Event of an Audit.
Designate an employee responsible for overseeing immigration law compliance and serving as a liaison with the government and/or outside counsel in the event of any audit. This employee should understand the basics of an I-9 inspection, so that in the event the business receives a Notice of Inspection, the employee will be prepared to respond appropriately, including coordinating with legal counsel.
What is an ICE Raid?
An ICE raid is a physical operation where ICE agents enter a workplace to question employees, seize records, and enforce immigration laws. Unlike audits, raids are often conducted without prior warning, which can disrupt operations and create confusion. During a raid, ICE agents may detain employees and seize documents.
ICE can access public areas of a business without a warrant, but they need either the employer’s permission or a judicial warrant (signed by a judge) to enter private areas of the workplace. Private areas include offices, employee workspaces, and other non-public locations.
Preparing Your Business for an ICE Raid
Employers can reduce the risk of disruption during an ICE raid by preparing in advance. Below are three essential steps to ensure readiness:
- Understand the Difference Between Public and Private Areas.
During a raid, ICE can freely access public areas such as parking lots, lobbies, restrooms, and dining areas in restaurants. However, ICE cannot enter private areas like offices or employee-only areas without the employer’s permission or a judicial warrant. Judicial warrants, issued by a court, are specifically marked with “U.S. District Court” or the name of the state court. Administrative warrants, issued by the Department of Homeland Security, only grant access to public areas. To restrict access to private areas, employers can lock doors and clearly mark restricted spaces with signs such as “Private” or “Authorized Personnel Only.” - Train Employees on Their Rights During a Raid.
Employers can prepare employees for a potential raid by training them about their rights. For example, employees have the right to remain silent and cannot be forced to answer questions about their immigration status, where they were born, or how they entered the country. They also have the right to refuse to provide identification documents or disclose their nationality or citizenship. They may ask to speak to an attorney. Employers should educate their workers about these rights through training sessions or written materials to help them respond appropriately during a raid. - Develop a Response Plan.
Having a response plan in place is crucial to handling an ICE raid. The plan should outline clear communication protocols for informing employees, legal counsel, and local law enforcement. Employers should designate a company representative to manage interactions with ICE agents and ensure that ICE is complying with the scope of their warrant. This representative should document the raid, including the names of ICE agents, any items seized, and whether ICE agents followed their legal authority. It is also vital to remain calm and cooperative while ensuring that employees’ rights are respected.
Conclusion
As immigration enforcement intensifies, employers are advised to take proactive steps to prepare for potential ICE audits and raids. Regularly reviewing I-9 compliance, establishing clear immigration protocols, and training employees on their rights are crucial actions that will help businesses avoid penalties and minimize disruptions. By preparing for audits and raids, employers can safeguard their operations, protect their employees, and maintain compliance with federal immigration laws, reducing the risks associated with ICE enforcement actions.
Lastly, employers that may be at higher risk for an ICE audit or raid because of the nature of their workforce would be well advised to retain counsel now, both to mitigate future risk, and to have on call in the event of an audit or a raid, which both occur with little to no advance notice.
Brendan P. Kelley, Kathleen R. O’Toole, and Jeffrey Z. Hernandez are Employment Law attorneys at the Boston-based law firm Conn Kavanaugh Rosenthal Peisch & Ford, LLP.
They can be reached, respectively, at bkelley@connkavanaugh.com, kotoole@connkavanaugh.com and jhernandez@connkavanaugh.com
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