By Robert G. Brody and Fintan S. Lalor

U.S. Immigration and Customs Enforcement (ICE) has begun their immigration enforcement crackdown under President Trump’s second term amidst threats of draconian action. So far, the hype is worse than reality. Fortunately, the Administration’s current enforcement efforts are largely not directed at employers, as their emphasis is on the “worst-first,” and now reportedly unaccompanied migrant children. While this is good news for employers, this is the time for employers to proactively audit their I-9 Forms and learn their rights if ICE or another government agency knocks on their door.

An Overview of I-9 Compliance

Employers must not knowingly hire individuals who are not authorized to work in the U.S. or continue to employ them after learning of their undocumented status. The federal government requires employers to verify the identity and employment authorization of all workers through completion of the I-9 Form. This requirement applies to every employee, whether full or part-time. The employee is to complete Section 1 no later than their first day of employment. Supplement A of the Form is to be completed by a translator/preparer if the employee is unable to complete the form him/herself. Next, the employee must provide the required work authorization and identification documentation to the employer within 3 business days of the first day of employment. Thereafter, the employer is to complete Section 2 within 3 business days of the first day of employment. Supplement B of the Form is to be completed by employers for employees who are rehired or whose employment authorization requires reverification.

Although ICE’s primary focus is not on businesses currently, it is possible they could shift their priorities. Employers should take this opportunity to ensure their I-9 Forms are properly completed and securely (and properly) maintained. Employers may consider consulting with competent legal counsel to assist in completing an I-9 compliance audit so the audit process is maintained confidentially between counsel and the employer. Additionally, employers may consider enrolling in E-Verify, a federal program that helps verify I-9 documentation is legitimate. The E-Verify program is currently mandatory for federal contractors, and in some states, for all employers. The Trump administration has floated the idea of making E-Verify mandatory for all employers. Employers should contact counsel to fully understand the benefits and potential drawbacks of enrolling in E-Verify.

Employer Considerations if a Government Agency Arrives at Your Door

There are two different scenarios in which a government agency may arrive at a place of business pursuant to immigration compliance concerns. The first, and less intense scenario, is an I-9 audit. I-9 audits are initiated with the service of a Notice of Inspection (NOI) and require at least 3 business days’ notice. The NOI will request production of the company’s I-9 Forms and other supporting documentation, which may include a copy of payroll, a list of active and terminated employees, business licenses, and articles of incorporation. Based on the results of the audit, the government may issue penalties for I-9 violations, which can be quite severe, particularly in cases of knowingly employing unauthorized workers (criminal penalties are possible in egregious cases).

The other scenario is known as a workplace raid and does not require advance notice. In this scenario, authorities come to a business unannounced with the intention of arresting/detaining undocumented individuals and, in rare cases of extreme misconduct, discovering employer immigration/I-9 related violations. Significantly, ICE agents are allowed to enter public spaces, including public areas within places of work. This means ICE can enter restaurant lobbies and retail establishments without any special permission. However, absent permission from the owner (including an authorized representative)/tenant, valid judicial warrants are required to enter non-public/private spaces.

It is crucial to note that there is a difference between a judicial warrant, which is signed by a judge or magistrate, and an administrative warrant that is issued by the Department of Homeland Security (DHS), or ICE. A judicial warrant allows ICE to conduct any search authorized in the warrant, whereas an administrative warrant does not give ICE the authority to enter a place where there is a reasonable expectation of privacy (which exists in most private places of business). ICE can also enter private spaces if given permission to do so (for example, if the business owner gives voluntary consent for ICE to enter). This means you do not have to open the door or let ICE into private areas of your business unless they have a valid search warrant signed by a judge.

As an employer, you have many options to consider. If ICE comes knocking, will you answer the door? You can decide. If you answer their knock, will you open the door? Again, it is up to you. If they say they have a warrant, do you know the difference between a judicial and administrative warrant? Do you know how to read it to understand what ICE is permitted to do and where their authority ends? If you are asked to let ICE into private areas of your business, will you agree? If they ask you to identify the object of their search, will you? Will you offer other information about your employees? These are just some of the questions you should answer before you hear the knock. And what about your I-9s? Are they in order? Are they kept in a file separate from the rest of the employees’ personnel files? Have you audited your I-9s recently and is the result privileged or can ICE see the results of your audit?

Final Thoughts

So far, the Trump Administration’s crackdown on illegal immigration hasn’t met all the hype. Nonetheless, now is the time to create your proactive plan. Employers would be wise to review their I-9 Forms to ensure compliance. Likewise, employers should plan for the unlikely event that a government agency knocks on their door, looking for immigration violations. Employers have many options on how to deal with ICE, but only informed employers will be able to take advantage of these choices.

Brody and Associates regularly advises its clients on employment verification issues, the use of E-Verify, and all matters related to I-9s. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.