Employers across the country are bracing for enhanced immigration enforcement by the Trump Administration. Significant workplace raids by ICE (Immigration and Customs Enforcement) and related arrests have been reported across the country by employers. While reasonable minds may differ on the necessity of these types of enforcement actions, employers are unified in their confusion about how to respond.

To prepare for potential enforcement actions by ICE, employers should follow these three tips:

1. Understand the different types of enforcement actions
2. Prepare an incident response plan for the different types of enforcement actions
3. Implement the appropriate incident response plan if an ICE raid occurs

Enforcement Actions: Audits and Raids

The two most common immigration enforcement actions affecting employers are I-9 audits and workplace raids.

I-9 Compliance and Audits

Verifying the immigration status of workers is not new and is generally conducted through a formal process known as an I-9 audit. All new employees are required to fill out an I-9 employment eligibility verification form for their employer. ICE has the authority to conduct audits in which it reviews an employer’s compliance with I-9 documentation requirements and confirms a worker’s identity and authorization to work in the U.S. Employers should be prepared for significant increases in I-9 audits under the Trump Administration.

To prepare for an audit, employers should review and correct any issues with I-9 forms or other immigration documentation, such as work visas. They should designate a point person for I-9 compliance, typically a Human Resources executive, who will be responsible for collecting and maintaining accurate records. This person should be well-versed in the legal requirements for I-9 forms, ensuring that they appear lawful and accurate, and handling false or defective forms. They should know how many employees the company has, the location of the I-9 forms, and whether any employees have work visas, and should have a close relationship with the employer’s immigration counsel. Consult with counsel as to whether E-Verify or an electronic I-9 system will improve the company’s I-9 compliance.

Employers should store I-9 forms in a specific location, away from personnel files, in a manner that ensures they are organized and can be produced promptly. They must keep I-9s on file for all employees during active employment. For terminated employees, employers are only required to retain the forms for the longer of one year from the termination date or three years from the date of hire. A best practice is to purge I-9s for terminated employees once the required retention period expires. Employers should also train managers on general aspects of I-9 compliance so that they can identify and report any issues to Human Resources. By taking these steps, employers will enhance their ability to demonstrate good faith compliance efforts in the event of a potential fine.

Employers subject to an I-9 audit will receive a Notice of Inspection (NOI), which must be issued at least three business days in advance. If employers receive an NOI, they should promptly contact legal counsel. If more than three days are needed to prepare, counsel can request an extension of time. Employers may also want to notify their workers or their union representative. If ICE finds technical or procedural failures with the I-9s, it will issue a Notice of Suspect Documents or a Notice of Discrepancies. The employer then has at least ten business days to make corrections.

If a worker is suspected of being unauthorized, they must correct their documentation within that period or face mandatory termination. Employers may be civilly fined or criminally prosecuted for violations or uncorrected failures in the instance of an unauthorized worker. ICE may elect to issue a warning without fining the employer. If a fine is assessed, the employer will receive a Notice of Intent to Fine. The amount of the fine is based on a variety of factors, including business size, good faith efforts, seriousness, history, and aggravating or mitigating factors. The employer has thirty calendar days to appeal the fine.

Handling an ICE Workplace Raid

An ICE workplace raid can happen without notice and may involve local law enforcement. Employers should be aware that ICE agents conducting a raid need either a judicial warrant or an administrative warrant.

• Judicial warrants are signed by a state or federal judge and give ICE authority to enter non-public areas and search specific locations of the business.
• Administrative warrants are issued by the Department of Homeland Security (DHS) and signed by ICE immigration officers. Unlike judicial warrants, administrative warrants do not give ICE the authority to enter non-public areas without the employer’s consent.

Employers should train managers and employees on how to respond to an ICE raid and designate a company representative to handle interactions with ICE officials. The representative should:

• Notify legal counsel immediately
• Ask to see the warrant, confirm its validity, and obtain a copy
• Request identification from ICE agents
• Document the scope of the raid and any items taken
• Ensure that no employees obstruct ICE activities
• Remind employees of their right to remain silent and consult an immigration attorney

Employers should also retain legal counsel in advance and develop an Enforcement Action Plan (EAP) that includes contact information for legal, HR, and security teams, procedures for documenting enforcement actions, and resources for detained employees.

Conclusion

By understanding ICE enforcement actions, employers can be well-positioned to prepare for and handle them effectively. Employers should consult with legal counsel in advance to ensure that they are in compliance, develop an Enforcement Action Plan (EAP), and identify any areas of risk unique to their operations or industry.