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ICE at the Workplace: A Toolkit for Employers
Readying the Workplace for Impending Immigration Enforcement
Imagine you are the general counsel of a company that maintains warehouses across the country with thousands of employees. You know that your company is only permitted to hire individuals who are legally authorized to work in the United States, and you believe your company has instituted appropriate procedures to ensure that its workforce is legally authorized to be in and to work in the United States. But you have heard that the government is visiting warehouses like your company’s to check the employment authorization of employees and potentially seeking to detain anyone the government believes may be undocumented. It is critical that you remain informed and ready to face increased scrutiny of your employees’ immigration status at your places of business.
Immigration and Customs Enforcement (ICE) agents may legally come to a workplace for several reasons, including: 1) to conduct a Fraud Detection and National Security (FDNS) visit, during which government officials may seek to review documents confirming employer-sponsored visa status; 2) to perform a Form I-9 audit to confirm employees’ identities and authorization to work in the U.S.; or 3) to conduct an immigration raid, during which ICE officials may seize documents and/or arrest/detain individuals. This article provides a brief primer on the processes to consider implementing in anticipation that your company may be the subject of an ICE raid, as well as steps to take if a raid occurs.
Today’s Legal Landscape
Statutory Authority for an Immigration RaidEmployers and their executives, as well as any undocumented employees, may be at risk of criminal liability when ICE agents raid the workplace. Undocumented employees can be held criminally liable under 18 U.S.C. §1546 for falsifying immigration documents, and can also face detention and deportation following a raid. Employers and their executives, on the other hand, can be charged under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), codified at 8 U.S.C. §1324(a)(3)(A), which states that “[a]ny person who, during any 12-month period, knowingly hires for employment at least 10 individuals with actual knowledge that the individuals are aliens … shall be fined under title 18 or imprisoned for not more than 5 years, or both.” The term “knowingly” includes “not only actual knowledge but also knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition.” 8 C.F.R. §274a.1(l)(1) (1987). These facts and circumstances may include situations where an employer: 1) fails to complete, or improperly completes, an employee’s Form I-9; 2) “[h]as information available to it that would indicate that the alien is not authorized to work, such as Labor Certification and/or an Application for Prospective Employer”; or 3) “acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf.” Id. An “unauthorized alien” is one who is either not lawfully admitted for permanent residence or not authorized to work by 8 U.S.C. §1324 or the Attorney General. Id. at §274a.1(a).
Warrants for a Raid
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