The Trump Administration has made immigration law enforcement one of its top priorities and has already directed federal law enforcement agencies to begin conducting raids in search of unauthorized workers within the United States. Employers should know that there is an increased likelihood of scrutiny by federal agencies regarding the employment of foreign workers.

The United States Citizenship and Immigration Services (USCIS), an agency within the Department of Homeland Security, enforces federal immigration law and requires employees to be eligible to work within the US and demonstrate proof through Form I-9. Workplace audits or raids are likely to be conducted by U.S. Immigration and Customs Enforcement (ICE) or Homeland Security Investigations (HSI) to confirm compliance with federal law. The Department of Labor (DOL) has the authority to review Form I-9 and related documentation as well, but it is unlikely to conduct raids or audits in the same manner as ICE or HSI.

Preparing for an ICE Raid at the Business Premises

Employers should create a plan to determine whether federal officers have a valid judicial warrant that authorizes a search of the business premises and train employees not to consent to a workplace search beyond the scope of the warrant. While federal law enforcement agencies must have a judicial search warrant to search your business premises, warrants are not required to enter public areas of a building, such as a lobby or parking lot.

ICE officers will ask to conduct a search, retrieve documents, or speak with employees. It is important to ensure that employees, who may be the initial point of contact with a federal officer, are aware of the possibility of a raid and know how to respond appropriately. Companies should select and train a company representative to handle questions and serve as the primary contact person with ICE before, during, and after an ICE raid.

Some proactive steps employers may take to prepare for a possible raid include:

  • Conducting an internal I-9 audit
  • Organizing Form I-9 and related documentation into separate files from the employee personnel files
  • Keeping sensitive documents stored away when not in use
  • Ensuring that contracts with outside employee leasing agencies or staffing agencies have language requiring I-9 compliance
  • Creating a communication and response plan in the event that ICE conducts a raid
  • Training employees to contact a designated company representative, review a warrant, and communicate with ICE officers
  • Preparing their employees to remain calm and professional during a workplace raid
  • Communicating to employees that they should not run from or be confrontational with ICE officers.

Employers can take steps to protect their business from unlawful intrusion. Here are things employers may do if federal officers enter the business premises:

  • Ask federal law enforcement officers for identification and record the officers’ names and badge numbers
  • Ask if the officers have a warrant and review the warrant (it should be signed and dated by a judge, include a time frame for the search, describe the premises to be searched, and provide a list of any items to be seized). The search warrant may cover payroll records, I-9 forms, and employee identification documents
  • Clarify whether a warrant is an administrative warrant or a judicial search warrant. Administrative warrants carried by ICE officers are issued by a federal agency and direct enforcement agencies to arrest individuals named in the warrant. These warrants are not signed by a judge, so they do not have the force of a judicial search warrant (likely meaning they cannot search a business owner’s premises without the owner’s consent)
  • Ask the federal officer for a copy of the warrant and send the copy to legal counsel.

Once the federal officers have either provided proof of a warrant or have otherwise entered the premises, employers may still restrict the officers from exceeding the scope of the warrant.

  • Do not provide consent to the search, even if the officers have entered with a valid warrant
  • Allow officers to search within the scope of the warrant but do not give consent if officers ask to search places not described in the warrant
  • If officers search beyond the scope of the warrant, object to the search but do not interfere
  • Do not provide any false information, attempt to hide, or destroy any documents or items, assist employees with hiding from officers or leaving the premises, or interfere with officers’ attempt to speak with employees
  • Employers do not have to help officers sort employees by national origin or immigration status
  • Employers should unlock previously locked areas covered by the search warrant, if requested by the officer.
  • Document everything seized by the officers, and ask for an inventory list of all items and documents taken during the raid.

Employers should remind their employees that they have certain rights if they are arrested.

  • Employees have the right to remain silent. If an employee chooses to remain silent, they should verbally assert that they choose to remain silent
  • Employees have the right to an attorney
  • Employees can request to contact a local consulate if they are arrested
  • Employees should not sign documents provided by officers that they do not understand.

Following the raid, company representatives should immediately document the details of the raid, including the number of officers present and names, actions taken, details of any requests made by officers, and responses to the request.

The DHS may impose civil fines or criminal penalties for failing to comply with Form I-9 or employing unauthorized individuals.

Department of Labor Investigations

Employers should be aware that the Department of Labor (DOL) enforces certain laws under the Immigration and Nationality Act (INA), including, but not limited to, provisions that extend to the protection of different types of temporary foreign workers. Investigations often target low-wage industries. The INA authorizes the DOL to inspect I-9 forms retained by employers. During an investigation, the DOL may request to view an employer’s records. Importantly, the DOL does not need a court order or a search warrant. Furthermore, employers must allow DOL investigators to interview employees.

The DOL will resolve many cases administratively, but the DOL may litigate or recommend criminal prosecution if an employer willfully violates the law. Employers should cooperate with DOL inspections.

Staying Informed

Available information is likely to drastically change going forward. Some federal agencies have already removed information or closed webpages providing information to workers in the event that they are arrested by federal law enforcement agencies.

ICE may audit your business instead of conducting a raid. If you receive a Notice of Inspection (NOI), contact legal counsel. If you need assistance preparing for or responding to a raid, audit, or investigation by a federal law enforcement agency, please connect with a member of the Rhoades McKee Human Resources and Employment Law Team.

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