With the advent of the second Trump administration comes an anticipated increase in Immigrations and Customs Enforcement (ICE) activity, including workplace raids. Operating under the Department of Homeland Security, ICE has broad powers of investigation. They can investigate worksites, plant undercover agents and conduct armed raids with warrants. Employers found in violation can be debarred from federal contracts and fined.
While at press time no immigration laws have changed in the United States, only immigration policy, it’s always worth employers’ time to be aware of their rights and best operating practices.
According to the Immigration Reform and Control Act, passed in 1986, it’s illegal to knowingly hire “an unauthorized alien,” which means someone who is not in the country legally or authorized to work in the United States. Some companies may be able to defend themselves if they can demonstrate that they reviewed and accepted I-9 employment eligibility verification forms that appeared to be genuine when they hired a given employee.
Often, ICE will show up at a workplace with a notice of inspection or subpoena asking for the business to give them copies of paperwork within three days. The documents asked for usually typically include:
- Payroll and tax records, including I-9 forms
- Company ownership and vending information
- Copies of employee identification information
During such an audit, ICE will sometimes issue notices that certain documents are “suspect,” which only gives the employer a little time to challenge the finding or terminate the relevant workers’ employment. ICE, according to California law firm McDermott Will & Emery, usually only issues these when they’re confident that a worker is unauthorized, and “confronting the worker often results in the worker not returning to work."
Notably, ICE must present a judicial warrant in order to enter “nonpublic” areas of a workplace. DHS Form I-200 (pdf) or DHS Form I-205 (pdf) may be signed by immigration officers, but they aren’t judicial warrants, since they aren’t signed by a federal judge: Therefore, ICE can’t use those warrants to enter private areas of the workplace.
In an advisory memo for clients, McDermott Will & Emery provided a list of best practices for employers, including:
- Maintain and enforce a comprehensive immigration policy
- Conduct annual self-audits of employee I-9 forms, and store them in the correct format
- Use the Social Security Administration website to verify employee social security numbers match those listed by the administration, and ask employees to present valid documents if a mismatch appears
