Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On August 7, 2019, more than 600 agents from U.S. Immigration and Customs Enforcement (ICE) raided several companies across Mississippi. With the help of the local district attorney’s office, these raids resulted in the arrests of approximately 680 undocumented workers.1 Federal prosecutors involved described the investigation as “the largest single-state immigration enforcement operation in our nation’s history.”2 In response to this raid, Acting Director of ICE Matt Albence stated, “These are not new laws, nor is the enforcement of them new.”3 Mike Hurst, U.S. Attorney for the Southern District of Mississippi, added, “If we find you have violated federal criminal law, we are coming for you.”4
The raid in Mississippi illustrates the need for employers to adopt the proper protocol for ICE investigations.
Although several government agencies are responsible for enforcing federal immigration laws, ICE—which is part of the Department of Homeland Security (DHS)—is the primary agency affecting employers. Generally, ICE enforces an employer’s obligation to verify, and re-verify, the work authorization of all new employees. ICE may enforce this responsibility through random I-9 compliance audits or through a narrower investigation based on a lead. The lead can be an anonymous tip, or facts that form a reasonable suspicion of an employer’s noncompliance.
ICE has been concentrating its recent enforcement efforts on investigations, not random audits. These investigations have focused on all industries viewed as employing a large percentage of unauthorized workers (e.g., the construction industry, manufacturing or agricultural industry). The geographic scope has varied.
The following provides an overview of the logistics involved in an ICE I-9 site visit.
Notice of an ICE Audit
ICE must provide an employer with three days’ notice prior to a worksite inspection. ICE accomplishes this with a Notice of Inspection (NOI). An employer that receives an NOI should look carefully at it to ensure that the designated recipient is accurate. If a subcontractor or other entity is the designated recipient, the employer should identify immediately the appropriate entity/person for receipt.
No subpoena or warrant is required prior to an inspection, although precedent indicates that an employer cannot be penalized for refusing to provide the I-9 forms absent an administrative subpoena or warrant.5 It is advisable, however, to discuss next steps with counsel prior taking this position. Our experience has shown that this stance can be a problematic at times. In addition, precedent supports the assertion that ICE may not inspect6 or enter an employer’s premises to speak with employees without a warrant.7
With the assistance of legal counsel, employers should develop a standard policy addressing what managers should do if an ICE agent makes an unannounced visit. In particular, that policy should address: (1) the regulatory requirement that an NOI be issued; (2) the company’s policy regarding the potential need for a warrant or subpoena before the ICE agent is allowed to enter the worksite; and (3) the need to immediately inform a designated responsible officer about the visit. Having this standard policy in place will help ensure that managers know what to do in the event of an ICE visit and that appropriate company officials are notified of the NOI and the upcoming ICE audit.
Preparing for an ICE Investigation
The ICE audit will involve the inspection of I-9 forms. In this regard, the best defense is a good offense. The employer should work with legal counsel to prepare and implement a comprehensive I-9 policy. At a minimum, this policy should address: (1) the deadlines by which each section of the I-9 form must be completed; (2) the prohibition on requesting specific documents, or more documents, than the law requires; (3) instructions regarding how to determine the retention date of each form; (4) the company’s policy on copying the documents called for in Section 2 of the I-9 form; and (5) how to comply with the obligation to re-verify work authorization using a tickler system. Additionally, it is advisable to designate and train a manager to be in charge of preparing, maintaining, re-verifying, retaining and ultimately purging I-9s in compliance with the I-9 policy.
As noted above, the government is generally required to provide employers with three days’ notice of an I-9 audit, although an employer may waive this requirement and allow for immediate access.8 Accordingly, I-9 forms should be maintained so they can be accessed on short notice. Also, immediately contact legal counsel after receiving notice of an I-9 audit. Consultation with experienced legal counsel is critical in determining how to respond to notice of an I-9 audit and will help safeguard the employer’s interests every step of the way.
Before an investigation, it is also important that the employer create a Crisis Management Team. This team will answers questions like: Who will contact the legal team? Have we set up files for terminated employee’s I-9? Who is the main point of contact for coordination with ICE? How will the company address notifying employees’ family members? Will outside counsel have direct or indirect access to ICE? (If outside counsel will coordinate communications with ICE, have a Form G-28 Notice of Appearance ready to provide to ICE).
Among other necessary actions, the employer should determine whether there have been any past Social Security Administration or Internal Revenue Service mismatch notices. In doing this, employers must determine past responses to mismatch notices, past and present policies regarding mismatch notices, and respond to all mismatch notices.
At the Time of the Investigation
During an investigation, it is imperative that the employer determine the type of investigation being conducted. ICE may visit a worksite to conduct an I-9 inspection or to arrest employees who ICE believes lack authorized immigration status or who violated the terms of their immigration status.
ICE will provide an NOI if it is performing an I-9 audit. The division of ICE known as Homeland Security Investigations conducts I-9 audits, while generally ICE’s Enforcement and Removal Operations conducts arrests for immigration violations.
If ICE is at the worksite to arrest employees for potential immigration violations, request to view ICE’s warrant. Unless ICE has a search warrant signed by a judge, ICE can only enter public areas of the worksite. If ICE has an administrative arrest warrant, ICE must still gain consent to enter non-public areas of the worksite. It is imperative that the employer notify counsel before providing consent, which the protocol/policy should address.
In addition, the employer should make and keep copies of ALL documents given to ICE; obtain a receipt for any records taken; get the name, telephone number, and card of the lead ICE agent; and prepare memorandum setting out what happened.
The Day After an Investigation
After an investigation, it is essential that the employer responds promptly to ICE corrective action notices; coordinates all communication through counsel; and terminates employees that ICE finds to lack work authorization, after giving them an opportunity to refute ICE’s finding with new documentation. Any new documents should be vetted by ICE.
Moreover, the employer should be prepared to publicly address the enforcement taken by ICE.9 An employer can express its willingness to cooperate with ICE in the investigation to ensure all laws are followed. An employer can also emphasize that is has complied with the law by requiring its employees to complete a Form I-9 and/or participates in E-Verify and has not knowingly employed individuals who lacked work authorization.
ICE has discretion to assess a range of monetary penalties for I-9 violations. The dollar amount imposed will be a factor of the employer’s size, demonstrated efforts at good-faith compliance, and violations committed, as well as any prior history of immigration-related violations. Penalties for errors made on I-9 forms, or “paperwork” violations, can range from $230 to $2,292 per form, depending upon the number of violations on each form and the date when the offense occurred.10 If the government’s audit reveals that the employer knowingly hired or continued to employ an unauthorized worker, possible fines range from $573 to $22,297 per unauthorized worker depending upon the employer’s prior history of similar violations and the circumstances of the particular case.11 Where ICE finds a “pattern or practice” of immigration violations, it may also impose a criminal penalty of imprisonment of up to six months for a violation of the Immigration and Nationality Act (INA).12 Depending on the circumstances, there may be other sections of the U.S. Code that apply.
When ICE concludes its audit, it may serve the company with either a Warning Notice or a Notice of Intent to Fine (NIF). The company can expect a follow-up from the government regarding specific problem cases identified during the audit. An NIF will specifically set forth the violations alleged and state the penalty imposed. Depending upon the extent of the company’s I-9 compliance and its conduct during the audit, a lower-cost settlement may be obtained upon appeal.
Despite media reports, most ICE enforcement efforts are the result of a targeted investigation, not a raid. Nevertheless, it is important to realize that employers are entitled to receive three days’ notice prior to an ICE audit. But if an ICE agent knocks on your door, you should immediately contact legal counsel to discuss how to respond.
* Brian J. Bedard is a law clerk for Littler’s Global Mobility and Immigration Practice Group.
1 News Release, U.S. Immigration and Customs Enforcement, ICE executes federal search warrants at multiple Mississippi locations (Aug. 7, 2019).
2 Vandana Rambaran, ICE raids on Mississippi food processing plants result in 680 arrests, FOX (Aug. 7, 2019).
3 Catherine E. Schoichet, 680 undocumented immigrants are arrested in Mississippi, CNN (Aug. 8, 2019).
4 Abigail Hauslohner, ICE agents raid Miss. work sites, arrest 680 people in largest single-state immigration enforcement action in U.S. history, Washington Post (Aug. 7, 2019).
5 See generally McLaughlin v. Kings Island, 849 F.2d 990, 997 (6th Cir. 1988) (finding that an employer may not be penalized for asserting Fourth Amendment rights in response to a request from the Secretary of Labor to inspect documents).
6 See generally Marshall v. Barlow’s Inc., 436 U.S. 307, 310 (1978) (finding the Fourth Amendment protects commercial buildings, as well as private homes).
7 See U.S. v. Widow Brown’s Inn, 3 OCAHO No. 399 (Jan. 15, 1992).
8 See 8 C.F.R. § 274a.2(b)(2)(ii).
9 To address employee and humanitarian concerns, employers can contact affected families, inform employees that they will work within legal bounds to support them and protect their privacy, and inform employees of approved pro bono legal providers, available at https://www.justice.gov/eoir/list-pro-bono-legal-service-providers.
10 See 8 C.F.R. 274a.10(b)(2).
11 See 8 C.F.R. 274a.10(b)(1)(ii)(A); 8 CFR 274a.10(b)(1)(ii)(C).
12 See 8 C.F.R. 274a.10(a).