Immigration and Customs Enforcement (“ICE”) has the authority to conduct various types of worksite enforcement actions to enforce compliance with U.S. Immigration Laws. ICE may come to your workplace for an “Immigration Worksite Enforcement Action” via a worksite raid; a Form I-9 audit; or seeking to locate specific individuals. This guidance provides a high-level overview of the type of ICE Worksite Enforcement Actions that may occur at your workplace.
It is important to understand the difference between the types of enforcement actions visits and consult with counsel to prepare.
- ICE Worksite Raid: Worksite enforcement actions are often referred to as “raids” of Employers suspected of employing undocumented workers. ICE agents may arrive with a federal arrest and / or search warrant, often following an investigation to determine whether the Employer knowingly employed or continued to employ unauthorized workers.
- ICE I-9 Audit: A Form I-9, Employment Eligibility Verification Audit and Investigation is commenced by ICE with the serving of a “Notice of Inspection (“NOI”) on the Employer. ICE may request a variety of Company Documentation to be produced within three business days.
ICE WORKSITE RAID RESPONSE PLAN FOR EMPLOYERS
Assemble and Train the ICE Response Team on Company Policy, Procedures & Protocols During an ICE Worksite Raid.
An employer should work with Legal Counsel and have in place a written ICE Rapid Response Policy, Protocol and Procedures for ICE Enforcement Actions. As part of the written Policy, the employer should designate an ICE Response Team and establish a contact list to be deployed in the event of an ICE enforcement Action. The ICE Response Team should include:
- Front Desk Staff: The receptionist(s) should be trained to interact with ICE Agents professionally and to notify the Agent that Company Policy requires the receptionist(s) to contact Company Leadership and Legal Counsel. The receptionist(s) should request and verify the Agent’s Credentials and record the Agent’s badge number and contact information.
- Legal Counsel: Immigration and Employment Attorneys to advise on rights and compliance.
- Company Leadership: A designated member of Company Leadership should clarify the scope of the visit and accompany ICE officers to non-public spaces to observe and review any actions taken.
Administrative Warrant vs Judicial Warrant. There is a difference between an Administrative Warrant and a Judicial Warrant. Legal Counsel can train Company Leadership on the difference between an Administrative Warrant and a Judicial Warrant. Employers are not required to allow ICE access to non-public areas of the facility without a valid Judicial Warrant. A copy of the Warrant should be requested and sent to the designated member of Company’s Leadership to forward to Legal Counsel.
- Employees’ Rights in the Workplace: Legal counsel can train Company Leadership on employees’ rights when asked to engage with ICE agents in the workplace and have in place a standardized policy.
- Contingency Staffing Plan. The Employer may consider preparing a contingency staffing plan in case of business disruption due to ICE Enforcement Actions.
ICE I-9 AUDIT & INVESTIGATIONS RESPONSE PLAN FOR EMPLOYERS
Employers should work with their Legal Counsel to implement “Best Practices”.
In the current environment, where the focus has shifted to immigration-related worksite enforcement, I-9 Compliance and ensuring an authorized workforce is a boardroom-level issue. Recommended “Best Practices” include:
- Conduct an internal I-9 Audit with legal counsel to correct errors and demonstrate a good faith effort with I-9 compliance.
- Establish or review and update the Company’s I-9 Policy and Procedures.
- Provide I-9 Training for Employees who prepare I-9 Forms for the Employer.
- Retain I-9 Forms and supporting documentation for active and terminated employees separate from personnel files. Purge I-9s for terminated employees once the required retention period expires.
- E-Verify may be mandatory in your state, depending on state E-Verify rules. Even if not mandatory, consider enrolling in E-Verify to enhance compliance efforts. Consult with Legal Counsel.
In light of the anticipated expansion and increase in ICE Enforcement activities through worksite enforcement actions, Gunster’s Immigration Practice Group is available to assist Employers on taking proactive measures to anticipate immigration-related worksite enforcement by maintaining compliance with US Immigration and Employment Eligibility Verification laws as well as to prepare to effectively respond to worksite enforcement actions. https://www.gunster.com/capabilities/gunster-immigration-attorneys-florida
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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