There is a lot of talk and a lot of questions right now about the new administration’s policies and statements on immigration. ICE (Immigration & Customs Enforcement) is the Federal enforcement agency that focuses on immigrant status. They have recently been assisted by the FBI, DHS and other law enforcement agencies when they conduct “raids” to locate and detain suspected offenders. California employers face additional legal requirements due to state laws passed between 2017 and 2021. Employers must, for example, notify employees within 72 hours of receiving an audit notice. Employers are also prohibited from voluntarily allowing ICE to enter non-public areas unless the agent shows an appropriate warrant that authorizes access. Employers and employees are legitimately concerned about their rights and responsibilities. In this article, we will attempt to address some of these concerns.
There are two different occasions when an employer might be required to interact with ICE: an I-9 audit and a visit or “raid.” There are steps employers can take in advance to prepare for potential audits and visits. Our suggestions follow. You may also want to contact legal counsel if you have specific questions or anticipate real-life employee concerns.
Steps to Take Now:
Audit the I-9 file to make sure that the I-9’s are complete. It is an interesting fact that when we audit I-9’s, most of the errors we find are in the sections completed by the employer and not in the sections completed by the employee.
- Employers are not responsible for determining an employee’s immigration status. Employers may not knowingly employ someone who is not authorized to work in the United States, but “knowingly” is an important word. It is important not to guess or assume.
- Employers are responsible for completing the I-9 completely and correctly, and making sure new employees complete it and provide the required documentation. The acceptable documentation is listed on the I-9 form.
- Employers are responsible for reviewing the documents the employee presents. If the documents appear to be genuine, they must be accepted. The employer is not required to confirm the authenticity of the document. There are good examples and images available at: https://www.uscis.gov/i-9-central/form-i-9-acceptable-documents.
- It’s a good idea to remind employees to stay on top of their work authorization documentation and engage in renewals far in advance.
Designate a high-level employee to be the main contact person for visits from law enforcement. This could be the CEO, CFO, or HR Director, for example. We recommend that the person be someone who has the authority and knowledge to call for legal backup. This person should have the name and contact information of legal counsel readily available. It would be best for this person to contact legal counsel in advance, so that they know what they should and should not do if visited.
Because ICE is authorized by Federal law to enter the business facility if they have been invited, it is our recommendation that employees be told they are not authorized to give anyone permission to enter beyond the lobby or other public areas. Instruct employees to direct all visitors, including law enforcement, to the employee designated to handle law enforcement visits. Be sure employees are aware of the name and contact information for this person.
Clearly identify all private areas that are not open to the general public. Examples of public areas include a lobby, entry area, waiting room, parking lot, or seating area of a restaurant of a café. Private areas are ordinarily for employees or staff only, or where someone needs specific permission to enter. You might use “No Trespassing” or “Authorized Personnel Only” signs. Many businesses are already using some means to restrict access due to safety concerns.
Steps NOT to Take:
Do not specify certain documents for I-9 compliance beyond those listed on the I-9 itself. In other words, do not require a driver’s license and social security card.
Do not take any action against an employee because you might have questions about their national origin, citizenship or immigration status. There are Federal and State regulations that protect employees from what could be seen as discrimination, harassment, retaliation, or wrongful termination.
Do not ask employees about their immigration status and do not give them legal advice. If they ask for resources, there is the National Immigration Law Center (https://www.nilc.org) or the California Immigrant Policy Center (https://caimmigrant.org).
I-9 Audit:
An audit is generally announced in advance when the employer receives a written notice from ICE (Notice of Inspection, or NOI). The employer typically has three business days to produce the requested forms. The auditor will review employee documentation for work authorization. This can happen on the company’s site, or ICE may request that the documents be sent to them for audit. Employers are required to comply with these requests, but can ask for additional time to gather the necessary information.
If ICE finds discrepancies in the I-9 records, they may issue a notice of suspect documents if they believe specific individuals do not have proper documents. ICE may choose to assess fines for documents that are not complete and correct (clerical issues), or for improper documents (compliant status issues). Employers must respond to these notices by either paying the fine or appealing the decision. We recommend having a complete back-up or digital copy of all documents if a notice of an audit is received. We also recommend contacting legal counsel if issues are identified.
Agent Visit or Raid:
Agents from ICE may be accompanied or replaced by other Federal officials, such as agents from Department of Labor or Department of Homeland Security. When agents visit, they need to show documentation. Note the name of the supervising agent and request reasonable accommodations as necessary. Agents may visit to conduct a workplace raid or to detain a specific person. Both reasons require a “judicial warrant” as opposed to an “administrative warrant.”
- If a search warrant is presented, examine it to determine the scope permitted by the warrant itself, and monitor the agents’ activities to ensure they stay within that scope. We recommend contacting legal counsel immediately.
- A valid judicial warrant is dated, identifies the court that issued the warrant, is signed by a judicial officer, describes the place to be searched, and states the persons or things to be seized. If the warrant is missing one or more of these requirements, it is invalid. For example, if the warrant does not identify your correct address, it is invalid, and officers cannot conduct a search without your permission. If a valid search warrant is presented, you need to comply.
- Administrative warrants do not come from a court but rather will say “Department of Homeland Security” or similar agency. If the document presented is an administrative warrant, the business does not have to allow the agents onto private space nor provide them with any information about a specific employee. This is also true for documents titled Deportation Order or Administrative Subpoena.
- If an agent visits, the receptionist should inform the designated contact. It is important to understand whether there is a valid warrant in place if ICE intends to access private areas of the property.
All people in the United States, regardless of immigration status, have the right to contact an attorney. They also all have Constitutional rights to remain silent and to be free of unreasonable searches and seizures. To assert these rights, they need to say that they are asserting each respective right. Employees, even in public areas, have the right to remain silent if questioned by law enforcement, and to ask for an attorney. The employer may (but is not required to) tell employees that they can choose to speak with the agent.
It is not appropriate to direct employees to not cooperate, or to obstruct the agent by hiding employees or assisting them in leaving the premises. It is also important not to provide false or misleading information to the agent.
If agents ask to examine documents designated as attorney-client privileged, the employer may refuse to produce them until they have consulted their attorney.
We are providing this general information. It is not intended to be legal advice and we do not serve as attorneys. If you have questions about how the law impacts a specific situation, you should contact legal counsel.
Feeling overwhelmed by I-9 compliance and ICE visit concerns? We can help. The Personnel Perspective understands the complexities of workforce compliance and is here to support your business. As a leading HR Consulting firm in Sonoma County and Napa County, we provide expert guidance to help businesses navigate ever-changing regulations with confidence. The Personnel Perspective offers trusted workforce compliance solutions nationwide—call us today at (707) 576-7653 to discuss your specific needs and develop a plan.