After taking office, President Trump signed a number of executive orders targeting illegal immigration, including Executive Order 14159, which orders U.S. Immigration and Customs Enforcement (ICE) to conduct expedited removals of unauthorized individuals in the country.
As of Feb. 3, the Department of Homeland Security has reported its agents have arrested 8,768 people. Historically, ICE’s Enforcement and Removal Operations (ERO) most commonly arrests immigration violators with convictions involving DUI, drug possession, assault and criminal (non-civil) traffic offenses such as hit-and-run or leaving the scene of an accident.
While ICE’s focus is currently on unlawful immigrants with a criminal background, it is anticipated that the agency will conduct raids at businesses as well.
Ensure Compliance
Employers should be prepared for ICE, DHS, or U.S. Customs and Border Protection (CBP) to show up unannounced to interview both employers and employees.
“I don’t think the likelihood is incredibly high, but I think it’s always important to be prepared,” says Andrew Bray, NALP senior vice president of government relations and membership. “We are aware similar industries like construction and agriculture have had incidents occurring since President Trump was inaugurated.”
Companies should conduct an immediate I-9 audit for errors, missing documents and compliance issues. I-9s must be kept on every employee for three years after the worker is hired or after one year of separation from the employer, whichever is later.
DHS agents regularly conduct I-9 audits to inspect an employer’s compliance with Form I-9, which verifies a worker’s identity and authorization to work in the U.S. Employers receive a notice of inspection and must comply within three days. If any employee is found not authorized to work, the employer has ten days to rectify the issue or face penalties.
If a company receives a “no-match” letter from the Social Security Administration (SSA), they should not immediately fire the employee identified in the letter. Follow the formal process to verify the information is correct.
Bray recommends landscape companies utilize E-Verify to avoid hiring unauthorized immigrants.
“Also, just look to see if you see anything that doesn’t feel right,” Bray says. “If you see something doesn’t feel right, then go address it with them right then and right now. Don’t wait for somebody to come to your doorstep.”
How To Prepare Your Team
Because ICE has the authority to show up unannounced at worksites, with or without a warrant, it is important to have a formal plan in place on how to handle immigration enforcement interactions.
Designate an individual to interact with ICE and make sure everyone on your team knows who that is and how to reach them.
Educate your team that they have the right to remain silent and are not required to answer questions from ICE agents. Any information provided to ICE can be used against them. Regardless of their immigration status, people have the right to speak with an attorney.
Employees are not required to present documents to agents, but if they do provide them, they should be accurate and up-to-date.
“My advice is that there is always a copy that is readily available,” Bray says. “One, have a picture on your phone because almost everybody always has a phone on them. If you’re out in the field, they should be in your truck. If you’re driving home from the shop, then it should be in your vehicle. I would always have two forms. I’d have something on my phone and I’d have a copy of whatever that document is, whether it’s an H-2B visa, whether it’s temporary protected status. There are multiple ways people can be here and working legally.”
If an ICE raid occurs, stress to your team members that they should not run as it gives ICE probable cause to not only arrest but to enter any areas not covered by a warrant or enter areas without a warrant.
Bray encourages companies to be very direct and open with their employees when discussing this serious topic.
“They’re trying to avoid fear,” Bray says. “This is something that’s happening right now. They can say, ‘We are very hopeful this does not happen to our organization, but this is why we’re preparing you for this, because we don’t want you to be afraid. We don’t want you to run and more importantly, we want to protect you and make sure you know your legal rights while you’re employed for our company.’”
Click here to view our Immigration Enforcement Preparedness Fact Sheet; available exclusively to NALP members.
What Happens During an ICE Raid?
ICE raids occur when ICE agents visit a business without prior notice as part of an investigation of an employer. Raids can be triggered by tips from members of the public or information from ICE’s other enforcement activities like I-9 audits.
If a raid occurs, stay calm and ask the agent for a warrant signed by a federal or state judge. Immigration orders from DHS do not carry the weight of a judicial warrant.
If ICE officers do not have a warrant signed by a judge, companies are within their rights to restrict them to only the workplace’s “public” areas. Bray says public areas would be anywhere you would let a customer come in.
The designated point person should accompany ICE officers through the public areas and if they have a warrant, through the private portions of the building. It is advised to video and take detailed notes if there are violations by the agents so there is sufficient evidence.
ICE agents may seize documents related to payroll, so keep detailed notes on all these seized items.
In some cases, all operations may be halted during a raid and employees ordered to remain onsite. If agents request workers to stand in groups according to their immigration status, they have the right to stand still.
Workers do not have to answer ICE agents’ questions about their place of birth, immigration status or how they entered the country. Employees and employers are not required to answer agents’ questions about a particular worker’s whereabouts.
While employees have a right to remain silent, encourage everyone to be courteous and calm when interacting with federal officials.
“Regardless of anybody’s political opinion of wherever anybody stands, DHS is still a law enforcement agency,” Bray says. “It is not going to behoove you to act like a jerk to them, even if they’re acting like a jerk to you. That’s never going to do anybody any favors. Be polite, be professional, be prepared. Have a plan.”
Responding After an ICE Raid
Following an ICE raid, immediately document how many agents entered the property, if they were armed, whether they were wearing agency uniforms and if they mistreated anyone. Record if they made you or the employees feel like they couldn’t leave, as this could help fight any arrest or detention.
If an employee has been arrested, employers should ask where they are being taken and contact their emergency contact on file. Contact your legal counsel and ensure the employee is paid any outstanding money owed.
