Immigration Workplace Raids: Top 10 Things to Do if ICE Shows Up to Talk to Your Workers or Review I-9 Forms

Immigration Workplace Raids: Top 10 Things to Do if ICE Shows Up to Talk to Your Workers or Review I-9 Forms

By Laura C. McHugh, Esq.

President Trump’s plans to aggressively enforce the nation’s immigration laws have resulted in workplace sweeps being back on the rise. The sweeps hark back to Bush’s administration, where workplace raids herded thousands of workers suspected of immigration violations, and come after years of relative calm under the Obama administration, which focused on paperwork violations to penalize abusive employers rather than punish illegal workers.

You and your employees must be prepared:

(1) Designate a point person to act as the contact person in case Immigration and Customs Enforcement (ICE) comes to your workplace.

(2) Inform staff that they must not give consent to enter any non-public part of your premises and they must immediately direct ICE to the point person.

(3) Inform staff that they must document all contact and actions by ICE, including the name of the ICE agents, the time of contact, what was said, etc. (take written notes, photos, video, etc.)

(4) If ICE has no warrant, you have no obligation to allow them into the private areas of your premises, nor do you have any obligation to provide or show them documents, including I-9 Forms. However, ICE agents may enter public areas of your workplace, such as the public area of a restaurant.

(5) If ICE has a warrant to enter your workplace, make sure it is signed by a judge or magistrate. An administrative arrest warrant signed by an immigration official is not enough. You have the right to look at the warrant (or other legal authority) and you should immediately forward it to your attorney for review

(6) Even if ICE has a valid warrant to enter, workers are nevertheless under no obligation to speak to ICE. Workers have the right to remain silent and should insist on talking with a lawyer before answering questions. Workers should not volunteer any information about their immigration status or birthplace or sign documents without speaking to a lawyer first. Workers should tell ICE they would like to speak to a lawyer. Workers should not run away or hide.

(7) Be aware that ICE may audit your I-9 Forms, which employers must fill out to verify the identity and employment eligibility of workers upon hire. However, ICE needs to serve you with a Notice of Inspection (subpoena) before inspecting your I-9 Forms. By law, employers then have three days to produce their workers’ I-9 Forms. Such audits or “silent raids” were the target of the Obama administration.

(8) Keep I-9 Forms separate from other personnel documents. This is because ICE is under a duty to inform the Department of Labor (DOL) if it comes across other violations (for example, potential Wage and Hour violations) while reviewing your documents.

(9) Conduct a self-audit of your I-9 Forms. This self-policing likely will help to reduce penalties if ICE later finds a discrepancy.

(10) Employers who knowingly hire illegal workers face criminal prosecution, forfeitures and civil fines. However, you may have a good faith defense to any charge that you knowingly employed an illegal worker if your worker presented documentation that appeared valid at the time of hire. In fact, if a worker presents documentation that appears valid, you may not ask for back-up documentation even if you suspect the documentation is fraudulent.

Finally, California employers also should be aware of a bill pending in the California legislature, the Immigrant Worker Protection Act (AB 450). If passed, AB 450 would prohibit California employers from allowing immigration agents to enter a workplace or view their employees’ files without a subpoena or a warrant and would prohibit retaliation by employers against employees who report unfair labor conditions, regardless of the person’s immigration status.