Labor & Employment Developments Blog

Immigration enforcement by United States Immigration and Customs Enforcement (ICE) has recently increased. Taking a proactive approach could help employers prepare to face immigration enforcement actions, such as raids or I-9 audits, and mitigate employer risks. The first step is for employers to understand and familiarize themselves with the differences between ICE audits and raids.

What is Form I-9 - Employment Eligibility Verification?

All U.S. employers are required to complete Form I-9 - Employment Eligibility Verification to verify the identity and work authorization of every individual hired for employment in the United States, whether they are US citizens or foreign nationals.

What is an ICE Audit?

An ICE audit is an inspection by authorized government officials to determine an employer’s compliance with employment eligibility laws, such as Form I-9 verifications.

Officials from the Department of Homeland Security (DHS), the Department of Justice (DOJ), and the Department of Labor (DOL) possess authority to inspect employers’ Form I-9 records. Prior to an ICE audit, an employer will generally receive a written Notice of Inspection at least 3 days before the inspection is to occur. Officials generally choose where they will conduct a Form I-9 inspection. For example, officials may ask that an employer bring all or requested Form I-9 records to a U.S. Immigration and Customs Enforcement field office, or they may arrange for an inspection onsite.

When officials arrive to inspect an employer’s Form I-9 records, the employer must be prepared to retrieve and reproduce electronically stored records and any other documents the officer requests. Employers who violate the law may be subject to civil fines and/or criminal penalties (typically imposed when there is a pattern or practice of violations).

What is an ICE Raid?

Unlike ICE audits, raids are unannounced, and thus far more disruptive to the workplace. Raids target unauthorized workers or suspected illegal hiring practices. During a raid, ICE agents arrive at the worksite and surround the premises, monitoring all exits and entrances. The goal is to identify, detain, and arrest unauthorized workers at a worksite.

What should Employers Do?

Employers may take the following steps prior to an audit and raid:

• Contact your employment/immigration counsel.
• Perform an internal I-9 audit to ensure compliance with the law. Such internal audits help employers identify and correct any violations prior to an ICE audit or raid.
• Train HR professionals to ensure that they are up to date with recent changes.
• Provide Form I-9 training to ensure compliance with immigration and record retention.
• Use E-Verify to improve compliance with work authorization verification.
• Speak to counsel regarding substantive or technical violations.  
• Create an ICE raid action plan. Have a plan for how your business will respond to a potential ICE raid.
• Brief leadership, managers, and HR personnel on basic legal rights and internal protocols for handling law enforcement visits.
• Educate employees regarding their rights during a raid.

During an ICE raid, employers should:

• Always remain calm, polite, respectful, and cooperative.
• Stay calm and request identification. Politely ask ICE agents for their official credentials, noting names and badge numbers.
• Request any warrant or official documentation that specifies the scope of the search.
• Review the warrant’s scope.
• Contact legal counsel immediately.
• Protect your employees. Reassure staff that they may request a lawyer.
• Document the encounter.
• Take appropriate follow-up steps after any visit from ICE.
• Communicate with employees. Provide updates and clarity on what occurred and what they should do moving forward.
• Handle all follow-up with ICE through your attorney.

Cooperate with ICE officials. Remind employees not to interfere with the raid.