With President Trump’s recent inauguration, issues of immigration law have come to a head in
workplaces throughout the country. As raids are already being implemented in a multitude of
industries, employers need to understand their rights and obligations when the U.S. Immigration
and Customs Enforcement (“ICE”) knocks on your door. Below is a summary of the
recommended actions that employers should consider if they are the target of a raid or audit from
ICE. Most importantly, employers should call counsel as soon as possible once they learn that
ICE is conducting a raid or audit of their business.

ICE Raid
ICE may conduct an enforcement action, or raid, on an employer without notice.  ICE officers
will show up at your premises seeking to conduct a search and retrieve documents as well as to
speak with employees. Should this occur, the actions listed below should be taken. Most
importantly, key employees should be aware of these action items prior to an ICE visit, including
office managers, receptionists, or other employees who are likely to be the first employees who
the officers encounter should a raid occur. It is also recommended that a company representative
be designated to handle questions and serve as the primary contact person with the ICE officers
during or after a raid.

• If ICE officers arrive at the premises, the office manager/receptionist should immediately
  contact the company’s designated representative, who should then immediately contact
  counsel. The office manager/receptionist or company representative should inform ICE
  that counsel is being contacted. If counsel is able to come to the premises immediately,
  the company representative should request that the officers wait for counsel to arrive
  before proceeding.
•  The representative should ask for identification and record the officers’ names and badge
  numbers.
• The representative should ask the officers if they have a warrant and review the details of
  the warrant, which to be valid should be signed and dated by a judge, include a time
  frame for the search, describe the premises to be searched, and a list of items to be
  searched and seized. Typically, these items will include payroll and time records, I-9
  forms and employee identification documentation.  Ask for a copy of the warrant and
  send it to counsel. You can accept the warrant but inform the officers that you do not
  consent to the search of your premises. The search will proceed, but this will allow you to
  contest the search later should you choose to do so. If an ICE officer presents a warrant
  that is not signed by a judge, it is important to contact and consult with counsel
  immediately.
• If the officers do not have a warrant they may still enter into any public areas of the
  premises (bar, dining area, parking lot, lobby, waiting area, etc.), but cannot enter into
  any private areas without your consent. Similarly, if the warrant limits the areas that may
  be searched, officers may not search other areas without your consent. You should
  consider placing signage indicating certain areas as “private” to distinguish them from
  public areas in advance of any ICE raid.
• If officers attempt to search the premises beyond the scope of the warrant, inform the
  agents that you object to the search, but do not physically interfere with the officers’
  search of the premises.
• Do not lie or provide false information to officers or attempt to destroy or hide any
  documents or items. Do not assist employees with hiding from officers or leaving the
  premises or encouraging them to do so.
• The company representative should follow the officers and document what they are
  doing, either by taking notes and/or recording video. The representative should log any
  items that are taken and ask the officers if copies of any documents can be made before
  they are taken. If the officers ask to take computers or electronic devices that are covered
  by the warrant, you can request that the officers image the devices instead of seizing
  them.  If their seizure of any items will interfere with your ability to conduct your
  business, you should inform the officers and request that they not take the items but
  image/copy the items instead.
• Any locked areas covered by the warrant should be unlocked if requested by the officers.
• The officers may ask to speak with employees or move them into different areas to be
  spoken to. Do not interfere with the officers’ attempts to speak with employees. However,
  you do not need to assist the officers in their request by, for example, providing
  information concerning any employee’s immigration status, national origin, or by
  identifying any specific individuals that ICE may be looking for.
• You may tell employees that they can choose whether or not to speak with ICE, however,
  you should not direct employees not to cooperate with ICE or to refuse to answer
  questions.
• A raid may take hours. If any employees have any specific issues that may need to be
  addressed – such as medical or family issues – you can let the officers know and ask for
  their cooperation in accommodating the employees’ needs.
• You may ask the officers for a list of all items taken during the raid.
• Following the raid, the company representative should immediately document the details
  of the raid, including the number of agents present and names, actions taken, specific
  details of any requests made by the officers and the response to any such requests.

ICE Audit
Alternatively, ICE may conduct an audit of your I-9 and related documentation.  ICE will
provide you by hand delivery, FedEx, or certified mail, a copy of a notice of inspection. The
notice of inspection will require you to provide ICE with copies of all requested records
within three (3) days of your receipt of a notice of inspection.  It is important to immediately
contact counsel upon receipt of a notice of inspection so that counsel can then contact ICE and
attempt to negotiate a brief extension of time.  If you have unionized employees, the union will
need to be informed of the audit request.

The notice of inspection will likely ask you to produce all I-9 forms (and Form I-9 supporting
documents from List A/B-C, if applicable) for your current employees and terminated employees
within the I-9 retention period, a list of current employees, a list of terminated employees within
the I-9 retention period, payroll records, E-Verify records (if you are on E-Verify and/or required
to be on E-Verify), information regarding your I-9 electronic software and related audit trail, and
information about the business and its ownership. If your I-9 forms are not currently organized in
such a way that would allow you to retrieve and produce them if you receive a notice of
inspection, we recommend taking the time now to ensure that your I-9 documentation is
organized properly. Forms I-9 and the supporting documentation should never be comingled in
an employee’s personnel file.

Once the documents are sent to ICE, they will be reviewed, and ICE will inform you of the
results of their audit following their review through a Notice of Technical or Procedural Failures.
This process could take weeks or years to be completed. If no violations are found, ICE will
provide you with a compliance letter.

If ICE determines that some individuals are unauthorized, you will be so informed through a
Notice of Suspect Documents and then have ten (10) days to provide legitimate work
authorization documents for these employees and/or terminate these employees and provide
evidence of same. If ICE finds violations, penalties can range between a warning, to civil, or
even criminal penalties for more severe violations. The amount of any civil penalty depends on
several factors including the number of prior offenses, number of violations, size of the business,
a determination of the good faith of the employer, the seriousness of the violations, and/or
whether any violation is the result of the employment of unauthorized workers. Employers are
entitled to challenge any alleged violations and/or penalties being issued through a hearing
before an Administrative Law Judge.

Among the factors that ICE considers in determining whether an employer has acted in good
faith is whether employees have been trained in I-9 compliance.  It is recommended that before a
raid or audit occurs that employers engage counsel to provide I-9 training and to conduct an
internal I-9 audit that is protected by attorney-client privilege to address any issues to the extent
possible before a raid or audit occurs.

Next Steps
By taking concrete steps now, you can limit your risk and do your best to avoid an invasive ICE
raid altogether. Here are five steps you can take today to ensure extreme vigilance in an era of
extreme vetting.

• Ensure your I-9 compliance programs are in place, up-to-date, and followed.
• Complete I-9 forms if any are lost or missing. All current employees hired after
  November 6, 1986, must have an I-9 form on file. Use payroll records to ensure that you
  have all I-9 forms required for current employees or prior employees.
• Train staff and managers on how to complete an I-9, and what actions they should take
  when they are made aware that an employee may not be authorized to work in the U.S.
• Conduct regular internal I-9 audits and remedy identified errors. You should have counsel
  conduct periodic I-9 audits as well.
• Train your office manager/receptionist to immediately contact counsel in the event of a
  raid. They should be trained on what do in the event of a visit from ICE officers.

Conclusion
If you have any questions about these developments or how they may affect your business, feel
free to contact us.