With immigration enforcement becoming a pressing issue in workplaces across the United States, it is critical for employers to understand their rights and obligations when confronted with an ICE (Immigration and Customs Enforcement) raid or audit. In recent years, ICE has ramped up its enforcement actions, including unannounced raids and formal I-9 audits, targeting employers in various industries. Failing to handle these situations properly can lead to significant legal and financial consequences.
Below, we outline key steps employers should take to prepare for and respond to an ICE raid or audit, ensuring compliance while protecting their rights.
1. What to Do During an ICE Raid
ICE raids can occur without prior notice, with officers arriving at your premises to conduct searches, seize documents, and question employees. Employers must act swiftly and strategically to protect their business. Here’s how:
a) Prepare in Advance:
- Designate a company representative to handle ICE interactions and train frontline employees on how to respond.
- Train employees to contact management immediately if anyone from the government arrives at the workplace and is asking questions. They should be trained that they are not authorized to share any information with any third parties, and they should be instructed to inform the officers that they have to speak with company management. The employees need to be trained that they are not to consent to any access to private areas of the company.
b) Actions to Take During a Raid:
- Contact Counsel Immediately: Notify your legal counsel as soon as ICE officers arrive. Request that the officers wait for counsel before proceeding, if possible.
- Verify the Warrant: Ask for a copy of the warrant and check that it is signed by a judge, specifies the premises to be searched, and lists the items to be seized. Do not consent to the search but allow it to proceed while noting any objections.
- Document the Raid: Record the officers’ actions, take notes, and log items taken. Request a copy of the warrant and an inventory of seized items.
- Follow Legal Boundaries: Do not provide false information, hide documents, or obstruct the officers. Avoid providing employee-specific information unless required by the warrant.
c) Post-Raid Documentation:
- After the raid, document all details, including the officers’ names, actions taken, and items seized. This information will be critical for legal review and potential challenges.
2. Responding to an ICE I-9 Audit
Department of Homeland Security’s ICE generally conducts most audits, or “Notices of Inspection” (NOI), typically require employers to produce I-9 forms and related documentation within three business days. However, these audits can also be conduced by other agencies, such as the Department of Justice or the Department of Labor. Here are a few items on how to respond effectively:
a) Immediate Actions:
- Contact legal counsel upon receipt of an NOI.
b) Preparing the Documents:
- Gather requested I-9 forms for current employees and terminated employees within the retention period (three years from the hire date or one year from termination, whichever is later).
- Include any supporting documents (List A/B/C) if applicable, payroll records, and E-Verify documentation.
- Ensure I-9 forms are stored separately from personnel files to streamline retrieval.
c) Review and Organization:
- Use the three-day period to review I-9 forms for errors or omissions. Make any allowable corrections before submission.
d) Submitting to ICE:
- Provide requested documents by the deadline and request a receipt for all items submitted. If additional time is needed, legal counsel can attempt to negotiate an extension with ICE.
3. After the Audit: Possible Outcomes
Once ICE completes its review, employers may receive one of several notifications:
- Compliance Letter: Indicates no violations were found.
- Notice of Technical or Procedural Failures: Identifies minor errors; employers may be allowed to correct them.
- Notice of Suspect Documents: Lists employees whose work authorization is in question. Employers have 10 days to address the issues or terminate the employees.
- Notice of Intent to Fine (NIF): Cites substantive violations or unauthorized employment, which may result in civil or criminal penalties.
Employers have the right to challenge alleged violations through a hearing before an Administrative Law Judge.
4. Proactive Steps to Mitigate Risk
Taking proactive measures is key to minimizing the risk of ICE enforcement actions and demonstrating good faith compliance. Here’s how employers can prepare:
a) Conduct Internal I-9 Audits:
- Regularly audit I-9 forms under the protection of attorney-client privilege to identify and correct errors before an ICE audit occurs.
b) Provide Employee Training:
Train HR and management staff on proper I-9 procedures to ensure compliance and mitigate penalties in case of an audit.
c) Maintain Proper Documentation:
- Organize I-9 forms and supporting documents in a way that allows for quick and efficient retrieval during an audit.
- Lawfully audit and clean out I-9 forms for terminated employees once they are past the retention period.
d) Develop a Raid Response Plan:
- Designate a company representative to handle ICE interactions and provide employees with clear instructions on what to do during a raid.
5. Understand California State Law Notice To Employee Obligations
Pursuant to Labor Code section 90.2(a), California employers are required to provide notice to employees of any inspection of I-9 Employment Eligibility Verification forms or other employment records by an immigration agency by posting a notice within 72 hours of receiving the notification of inspection. Employers should familiarize themselves with this requirement and the Frequently Asked Questions on AB 450. The Notice To Employee required under Labor Code section 90.2 are available in English and Spanish.
Immigration raids and audits can be disruptive and stressful, but with the right preparation and legal guidance, employers can navigate these challenges effectively. By understanding your rights and responsibilities, maintaining proper documentation, and conducting regular internal audits, you can reduce your risk of penalties and ensure compliance with immigration laws.