ICE Is Knocking – Practical Steps to Prepare and Respond

Since President Trump took office, Immigration and Customs Enforcement (ICE) has intensified immigration enforcement, reportedly arresting and deporting thousands of undocumented immigrants. It is only a matter of time before ICE enforcement will result in increased workforce audits and raids. Given these heightened enforcement risks, employers should consider taking the proactive steps below to review their work authorization practices and create action plans for potential ICE audits and raids.

Overview of ICE Audits and Raids

ICE audits typically involve the agency inspecting work authorization documentation and processes, such as Form I-9s and E-Verify, to ensure compliance with applicable laws. These audits typically begin with a Notice of Inspection (NOI). ICE can issue NOIs for any reason, including randomly, even without suspected violations. No warrants or subpoenas are required.

During audits, ICE typically asks the employer to provide copies of Form I-9s for employees (current and recently separated) and other documentation, including payroll records, E-Verify confirmations, and other information to verify compliance. Violations on Form I-9s can be costly and add up since civil penalties can range from $288 to $2,861 per violation. If ICE finds employers knowingly hired or continued to employ unauthorized workers, civil penalties can range from $716 to $28,619, and, in some instances, ICE can seek criminal penalties and debarment from federal contracts.

ICE raids typically occur when ICE agents request immediate access to search the employer’s premises and records looking for undocumented workers. As discussed further below, ICE is generally authorized to search the employer’s public areas (e.g., lobby, parking lot) without a warrant, but it must have a judicially signed warrant or the employer’s consent to search private areas in the company’s premises.

How to Prepare for ICE Raids and Audits

Employers should consider taking the following steps now to prepare for ICE raids and audits.

Audit I-9 Forms for Compliance: Employers should review I-9 Forms for compliance, including:

• Ensuring the company has Form I-9s for all active employees and, for former employees, has retained Form I-9s until the later of: (i) three years after the date of hire; or (ii) one year after the date employment ends.
• Review Form I-9s for technical and substantive errors. Correct any technical failures and determine how best to address substantive errors.
• Technical errors involve minor errors that can be corrected on the Form I-9, such as date of birth, maiden name, or date of rehire.
• Substantive errors cannot be corrected, such as failure to complete the Form I-9 or provide the employee’s full name or sign the attestation document.
• Ensure Form I-9s and other immigration documents are kept separate and apart from personnel files and only include documents relevant to immigration.

Be Careful Not to Create Document Abuse or Discrimination Claims: When updating Form I-9s, it is important to ensure that the company requires the same practice for all employees to avoid potential discrimination claims. For example, do not screen certain individuals harder than other employees, since that could create an actual or perceived discriminatory practices based on race or national origin. In addition, employers must allow employees to provide any documents that are permissible under the Form I-9 to establish their work authorization. Demanding certain documents from employees could create document abuse claims.

Audit E-Verify Compliance: If the company uses E-Verify (either on a voluntary or mandatory basis), review E-Verify cases to ensure proper compliance. This includes ensuring E-Verify cases have been created for each employee who was hired after the employer was enrolled, appropriately handling all tentative non-confirmations, and confirming that E-Verify posters and notices are properly posted at all worksites.

Develop Employment Authorization Policies and Procedures: Employers should review their work authorization policies and procedures to ensure they are accurate and properly followed. Companies without these policies and procedures should consider creating them because they can demonstrate the company’s commitment to immigration compliance and could be useful if there is an ICE raid or audit.

Designate ICE Raid Team and Protocols: Designate a team to be the points of contact in case of an ICE raid. This team should be trained to meet ICE agents, review warrants, and document encounters. The team can vary, but usually would include someone who greets visitors (e.g., receptionist), security, HR, in-house and external legal counsel, and operations. Develop an action plan for ICE raids that identifies points of contact, responsibilities, and procedures for responding. These protocols should be provided to the internal designated team for ICE raids as well as other staff members who might be interacting with ICE.

Educate Managers: Managers should understand which areas ICE agents may enter without a warrant to avoid inadvertently consenting to a search. Consider having a written policy designating which areas are closed to the public and, therefore, would require a warrant to enter.

Educate Employees: Considering educate employees on their rights during an ICE raid, including distributing “Know Your Rights” materials or informing employees of their right to remain silent and to have an attorney. Employees should also be trained to remain calm during an ICE encounter and to ensure they carry proper identification (e.g., drivers licenses, green card, etc.) with them at all times.

ICE Audit – Action Plan

Take Immediate Action on NOIs: Employers should act quickly after receiving an NOI because, absent an extension, employers generally have three business days to produce the requested Form I-9s.

Timing of Audit: There is no designated timeline for an ICE audit. It can be as brief as a few weeks or as long as several years. ICE will inform employers when the audit is complete, indicting any violations found.

Review Process: The audit typically involves ICE reviewing Form I-9s to ensure they were timely completed, all necessary information is included and accurate, and documents establishing identity are allowable under Form I-9 instructions and legitimate. ICE will also evaluate E-Verify compliance if the employer participates, as well as the company’s process for handling social security no-match letters. The agency will review the forms and identify technical and substantive errors or patterns of unfair immigration practices.

Notice of Results: ICE will inform the employer of the results of an audit and may issue one of the following notices: Notice of Inspection Results, Notice of Suspect Documents, Notice of Discrepancies, Notice of Technical or Procedural Failures, Warning Notice, or Notice of Intent to Fine. If only minor technical violations are found, ICE may issue you a notice of technical or procedural failure, indicating certain mistakes on forms and allowing 10 business days to correct those errors. But if more substantive issues are found or there are repeat violations, ICE generally tends to fine businesses for Form I-9 failures. Employers may may be able to negotiate a reduction of the fine, set up a payment plan, or request a hearing before a federal administrative law judge within 30 days.

ICE Raid – Action Plan

Immediately Contact Designated ICE Team: The receptionist, security guard, or other individual who has first contact with ICE agents should know to contact the company’s designated ICE team members so they can start implementing the ICE raid protocols. That individual can tell officers that they are contacting company management and lawyers per company policy. If possible, see if company lawyers (in-house or external) are available to speak with the ICE officers either in person or over the phone.

Request Credentials and Warrant: Request ICE provide a copy of their credentials to record their badge numbers and contact information for the agents, their supervisors, and the U.S. attorney assigned to the case, if applicable. Ask ICE for clarification on the purpose of their visit, and, if applicable, require ICE to provide a copy of the warrant before allowing them to enter the facility. Determine the type of warrant to understand what areas ICE is legally permitted to access:

• Court Warrant: If the warrant is singed by a federal or state court judge, then ICE can access non-public spaces of the facility in accordance with the terms of the warrant. Even if ICE has a court warrant, it is important to review the warrant to ensure it has the correct company name and address, is properly signed and dated by a judge, includes a timeframe within which the search must be conducted, and has a description of the premises to be searched and a list of items or people to be seized (e.g., equipment, records, workers). This information could be important for questioning whether ICE is legally authorized to access the company’s premises, and, if so, whether there are any limitations on their access.
• Administrative or No Warrant: If ICE has no warrant or only an administrative warrant (e.g., signed by ICE on Forms I-200 or I-205), the warrant does not permit ICE to access non-public spaces.

Do Not Consent Without Warrant or Approval of Legal Counsel: Employers are entitled to object to searches of any areas outside the scope of the warrant. Even with a court warrant, the company can still refuse consent to the search and challenge the warrant later in court. But, if ICE proceeds, do not argue with or impede ICE. Simply document your objections to be used later.

Accompany ICE through the Facility, But Do Not Obstruct: Have the company’s designated ICE point person or team accompany ICE during the raid. Avoid obstructing or interfering with the ICE agent’s review.

Document the Raid: Have someone take detailed notes about the raid, including obtaining names and contact information for the ICE agents, document areas, documents, or systems ICE searches and any items ICE seizes, and document conversations with agents. If permitted, video or photograph the raid without interfering with the agents or doing so without their permission. If the company has security recordings, gather footage and make backup copies to ensure they are preserved.

Do Not Provide False Information or Hide Employees: Be honest in answering ICE questions. Avoid providing any information that may be false or misleading. Do not hide employees, aid them in escaping from the premises, shred documents, or provide false or misleading information. Also, do not instruct employees to refuse to speak to ICE, although they can choose to remain silent.

Notify Employees of Rights: Remind employees of their rights. These rights include the right to decline an interview by ICE agents, remain silent, refuse to provide identity documents, refuse to disclose their country of nationality or citizenship, and request legal representation. If employees are detained by ICE, notify their families.