Rich Meneghello, BridgeTower Media Newswires
While summer has arrived, there are plenty of warning signs that an ICE storm could be right around the corner for employers.
2018 has already been a quite turbulent year for activity by Immigration and Customs Enforcement (ICE) officials. In January, they raided nearly 100 7-Eleven stores in 17 states, including Michigan, in search of undocumented workers and managers who knowingly employ them. In February, almost 200 businesses were visited by ICE agents with an aim of pursuing at least 400 people thought to be unauthorized to work in the United States.
Workers detained by federal officials faced deportation, while the businesses that employed them will face federal scrutiny and possible punishment. According to ICE, each of the businesses employing these individuals will have their hiring records audited to determine whether they are in compliance with the law.
“If the businesses are found to not be in compliance, they will face civil fines and potential criminal prosecution,” the agency warned.
And the forecast isn’t getting any better. While ICE conducted approximately 1,300 immigration raids in 2017, reports indicate that the agency has set a goal of a whopping 5,000 enforcement visits at U.S. workplaces in 2018. And given that President Trump’s budget proposal included $570 million to hire 2,000 additional ICE officers and 300 special agents for ICE’s Homeland Security Investigations division, the agency could very well have the resources to carry out this aggressive posture for some time.
In other words, employers have never been at more risk of facing an immigration raid at their workplaces than right now. Have you prepared clients to take steps to reduce the likelihood of an unpleasant visit? Is there a plan in place should federal officials come knocking on the door tomorrow?
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What can be done today
Actions can be taken now to limit risk and best attempt to avoid an invasive ICE raid altogether. Here are five steps to ensure extreme vigilance in an era of extreme vetting.
• Ensure I-9 compliance programs are in place, up-to-date and followed.
• Complete I-9 forms if any are lost or missing. All current employees hired after Nov. 6, 1986, must have an I-9 form on file. Use payroll records to ensure that all I-9 forms required for current employees or prior employees are accessible.
• Train staff and managers on how to complete an I-9, and what actions they should take when they are made aware that an employee may not be authorized to work in the U.S.
• Conduct regular internal I-9 audits and remedy identified errors. Outside counsel should conduct periodic I-9 audits as well.
• Train a rapid response raid team responsible for immediately contacting immigration counsel and employment counsel in the event of a raid. They should be trained on what do in the event of a visit from enforcement officials, as outlined below.
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What to do if the government comes calling
The most common way in which a business might end up interacting with enforcement officials is through an audit. The agency will send a Notice of Inspection and ask company officials to produce certain I-9s for inspection within three days. Once the audit is under way, an investigator will typically work to verify that the forms are in order (completed timely, filled out correctly and entirely; associated documents are legitimate).
Once the review is complete, ICE will inform the company of the results. The best news would be a letter indicating full compliance. If only minor violations are found, the company may get 10 business days to correct any technical or procedural mistakes. If more substantive violations are found, a warning notice or a monetary penalty could be issued. This is especially so if the agency determines a company knowingly hired individuals not authorized to work in the United States.
Alternatively, ICE may conduct an actual raid, which is significantly more disruptive. To conduct a raid, ICE first obtains a search warrant (which means the agency has demonstrated to a judicial official that it has probable cause to effectuate an unplanned visit). If ICE officials have a search warrant when they come knocking, understand that they will take the position that they are entitled to immediate access to the company’s premises and records.
In the case of a raid, first examine the warrant to ensure things are in order. Second, monitor the search to ensure the ICE agents stay within the scope of the warrant, but stay out of their way to the extent possible. A company representative can be assigned to follow the agents around the premises and record their actions, but should not interfere with their investigation or engage in any hostilities toward them.
Third, be mindful of how actions could harm the company. Don’t do anything that might constitute harboring undocumented workers, such as hiding employees, aiding in their escape from the premises, shredding documents, or providing false or misleading information. If agents want access to locked facilities, unlock them and cooperate as much as possible.
The time to prepare for an ICE storm is now. Crossing fingers and hoping to not be caught up in these latest enforcement actions is not acceptable in today’s climate. You owe it to your business to take effective steps to prepare for a possible visit from an enforcement official.
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Rich Meneghello is a partner in the Portland, Oregon, office of Fisher Phillips, a national firm representing employers’ interests in all aspects of workplace law. Contact him at rmeneghello@fisherphillips.com, or follow him on Twitter at @pdxLaborLawyer.
