ICE at the Workplace: A Toolkit for Employers

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

Employers 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).