With a new administration tasking Immigration and Customs Enforcement (ICE) with arresting up to 1,000 immigrants per day, employers face an increased risk of visits from immigration law enforcement officers. Employers can also anticipate an increase in I-9 audit investigations from ICE and Homeland Security Investigations (HSI).
Note that an ICE audit is different than an ICE raid. These operations can be disruptive, costly and potentially harm a business’s reputation. However, with the right preparation, employers can take proactive steps to prepare and minimize the impact of such events. This guide will help Utah businesses navigate the complexities of dealing with ICE and I-9 audits by outlining key strategies for ensuring compliance, maintaining accurate documentation and developing a clear response plan to protect your workforce and your business.
Start with a plan
When dealing with immigration-related visits and investigations, it is best to have a plan in place for how your business will respond to law enforcement encounters. Have policies in place for knowing the law, ensuring compliance and how to respond to a visit or audit from immigration agencies. Prepare yourself and your employees on who to call, what documentation to ask and look for, and whether to record the interaction. Those interacting with law enforcement should know how to object to a search without obstructing it to avoid any accusations of harboring. You should know how Utah and federal laws interact so you know what information can or cannot be released appropriate to the request and your company.
ICE visits and raids
ICE workplace raids involve unannounced visits by ICE agents who may question, detain or arrest anyone onsite for immigration violations. One or two agents or an entire team of agents may show up at your business.
Although ICE visit protocol may vary depending on the team’s size, following these steps can minimize the overall disruption:
- Obtain credentials. Obtaining and copying ICE agents’ credentials allows you to verify their identity and maintain a record of their presence and involvement.
- Escort agents to a private area. Inviting ICE agents to a private area away from staff, clients and customers minimizes disruption, protects employer and employee privacy, and allows you to manage the interaction in a controlled setting.
- Contact legal counsel. Immediately upon ICE agents' arrival, contact an attorney experienced in dealing with ICE. This is crucial because it allows counsel to advise you in real time on how to navigate the situation legally, protect your rights and the rights of your employees, and potentially limit any negative consequences.
- Review ICE’s warrants or subpoenas. This is crucial because it verifies the legal basis for their presence and any actions they are legally allowed to take. It will also help you and your legal counsel prevent unlawful searches or seizures. Recognize the difference between an administrative warrant (issued by ICE and signed by an immigration officer or immigration judge) and a judicial warrant (issued by a court and signed by a judge). An administrative warrant does not authorize a search of an area with a reasonable expectation of privacy (i.e., your business’s non-public areas) without consent.
- Comply only as legally required. Cooperating with ICE within the bounds of the law enables you to simultaneously protect your rights and avoid unnecessary escalations. Politely decline requests outside of ICE’s legal authority and explicitly state if you do not consent to a search. Remember, you have the right to an attorney, and you have the right to remain silent. Do not consent to the inspection of private areas unless included in the warrant. Do not instruct employees not to answer questions — if you prepared a plan, your employees will know they have the right to remain silent. Do not hide anyone. Do not obstruct law enforcement.
- You can record. On private property, where permitted by the company, you may record the interaction with ICE.
- Was anyone detained? If anyone is detained, ascertain if they are under arrest, and note to yourself whether they were read their Miranda rights. Inform officers of any medical needs, familial obligations or urgent business concerns. Notify the families and emergency contacts of anyone who is arrested.
- Document what happened. As you are able during and immediately following your interaction with ICE, promptly record your recollection(s) of events.
Knowing how to interact with ICE during a visit or raid, along with meticulous documentation, will ensure you protect your rights, your employees and clients, and your business operations.
I-9 audits
An I-9 audit is a review conducted by ICE or HSI to verify that an employer is properly maintaining employment eligibility verification forms (I-9 forms) for their employees and is complying with immigration laws. By law, you are required to complete I-9s for all employees hired after Nov. 6, 1986.
For an I-9 audit, several key steps should be considered:
- Determine your preparation approach. The best way to prepare for an I-9 audit by ICE/HSI is for you to conduct an audit first. This allows you to proactively identify and correct any errors or deficiencies in your forms, thereby minimizing potential fines and legal consequences that could result from a later audit. You can conduct an audit in three ways: a self-audit, an audit performed by legal counsel, or an audit performed by a non-attorney third party. Attorneys are trained to identify issues with the I-9 forms that self-auditors often do not catch. Remember, only an audit performed by legal counsel will have attorney-client privilege protections.
- Understand who can maintain the attorney-client privilege. If you conduct an audit through legal counsel, it is crucial to understand who is on the management team to maintain this privilege because the privilege can be inadvertently waived when shared with individuals outside of the management team.
- Identify unauthorized workers. If the audit reveals unauthorized workers, assess the potential consequences (e.g., fines, legal repercussions, reputational damage, business disruption, etc.) and determine if further investigation is warranted. If you found one or two unauthorized workers, a deeper dive into your I-9 records and hiring practices may uncover systemic issues that need to be addressed, enable you to understand your potential liability and develop a plan to prevent future violations and minimize the negative impact on the business.
- Terminate unauthorized workers. Termination of unauthorized workers is often necessary. While immediate termination is often the simplest solution, a termination plan could be developed to balance legal compliance with business continuity if business operations are affected by the employee’s immediate termination. If you believe a termination plan may need to be developed, consult an immigration attorney — this is not something to navigate without expert guidance.
- Keep I-9 files and personnel files separate. I-9 forms contain personal information related to an employee’s work authorization status, which differs from the typical information in a personnel file. Separating these files helps to protect employee privacy by limiting access to sensitive immigration-related data, can limit the company’s liability, and can facilitate a streamlined audit process.
Proactive I-9 compliance, including regular audits and good record-keeping, is crucial to minimize legal and financial risks to your business.
Conclusion
Maintaining I-9 compliance and preparing for ICE is critical in protecting your business and workforce. By proactively auditing your I-9 practices, understanding your rights and establishing clear protocols, you can minimize risk and ensure business continuity. Navigating these complex situations doesn’t have to be overwhelming — resource partners like experienced immigration attorneys can help. Combine their expertise with established internal policies to unlock the support you need to safeguard your operations.