What to do when ICE comes knocking

What to do when ICE comes knocking

An immigration attorney offers best practices employers can follow to prepare for ICE audits.

June 28, 2018

The U.S. Immigration and Customs Enforcement (ICE) ramped up its worksite enforcement investigations and I-9 audits – ICE wrote in a news release that it has more than doubled these investigations in recent months.

These investigations are impacting the green industry, as ICE raided Corso’s Flower & Garden Center in Northwest Ohio the first week of June. That raid resulted in the arrest of more than 100 employees suspected of working in the U.S. illegally.

With increased immigration enforcement and recent raids by ICE, the Illinois Landscape Contractors Association encouraged members to listen to a webinar hosted by the Illinois Business Immigration Coalition (IBIC) to learn practical advice on how to prepare for an ICE audit or raid.

For the webinar, IBIC invited Anna Morzy, an immigration attorney from Fragomen Del Rey Bernsen & Loewy LLP, to share her expertise on this topic – from preparing ahead for I-9 form inspections to addressing ICE if they come knocking.

Develop a plan.

In light of strict immigration policy enforcement in recent months, Morzy said it’s important for employers to develop an action plan ahead of time to make sure I-9 forms are in order. She said many small- and medium-sized businesses fail to inspect their I-9 forms or develop an action plan for an audit or raid.

“It’s amazing how many of these employers don’t plan that there will be an I-9 inspection,” Morzy said. “This is the time to audit your I-9s and make sure everything is completed as it should be.”

To plan ahead, she said employers should set up the following:

  • Educate all employees on what to do in case the government visits. Let managers and field laborers alike know what the company’s protocol is in case the government or ICE visits.
  • Assign a point person who is an expert on immigration and ICE. If an emergency comes up, let employees know to connect with that point person.

Inspect your I-9s.

Part of being prepared for an ICE audit is having all I-9s filled out correctly, whether they are paper copies or electronic. Morzy said errors on I-9 forms could lead to violations.

“Yes, (the government) may be interested in only one employee who has a warrant (at your company), but the next thing they’ll want to see is all I-9s,” she said. “Make sure you have an I-9 for every single employee you’re required for – that’s key today with increased enforcement.”

I-9s have three sections that need to be completed. Morzy said the following are tips for each section of the form:

Section 1: This part must be completed by the employee before his or her first day of work for pay. Also, make sure the employee fills out all required items on the form – including address, social security number, email and phone number. If the employee lacks one of these, such as an email address, Morzy said it still needs to be filled out, but the employee can simply write “N/A” or “none.” The employee must sign and date section 1, as well. If the date they sign it is later than their first day of pay, this is a violation.

“Ultimately if you’re audited by ICE, that’s going to be a fine,” she said. “If you have 20 employees and incorrect I-9s for all 20 employees, that adds up to thousands of dollars.”

Section 2: This part must be completed by the employer within three days of the employee’s first day of work for pay. Morzy said this section confirms the identity and work authorization status of an employee.

For this section, the form has three columns – A, B and C. Employers must fill out either A or B and C. Each column lists acceptable work authorization documents that the employee must bring to the employer in order to fill this out correctly. The documents must be physically brought to the employer within three days – Morzy said this part can’t be done over the phone or digitally.

“If the I-9 is not completed by the employee’s third day, then it’s late and you have a violation,” she said. “If they say they can’t provide (this documentation), by law you have to terminate this employee. If you don’t, you may have an issue with an individual employee working for you without authorization, which is a key fine for any ICE office.”

Last, don’t over-document this section. “You don’t fill in all three parts,” Morzy said. “Just A or B and C.”
In addition, if something looks inconsistent between section 1 and section 2, investigate the issue. “You as the employer or manager aren’t judging whether these work identity documents are real,” she said. “But obviously if things look really wrong, then you may be on the hook – you could be in for violations.” 

Section 3: Employers or managers should complete section 3 only when an employee’s employment authorization document has expired. For instance, Morzy said if someone’s work visa is expiring, employers should fill out this section to document the extension of the work authorization. If the employee is no longer authorized to work or the document has expired, as the employee to present an unexpired document from List A or C in section 2.

“It’s up to you the employer to keep track of expiration dates of work authorization,” Morzy said. “If you don’t, the government could back and say that was on you.”

Preparing for ICE visit.

In the event that ICE does visit your business, Morzy said it’s important to be compliant but also protect the business. An important piece here is to speak with and be represented by an immigration attorney. Morzy recommended employers refrain from answering questions or signing paperwork before consulting with an attorney.

“You don’t want to sign anything that puts your business in harm’s way,” she said.

Also, make sure all employees know that they are only required to open the doors to an ICE audit or raid if ICE has a written warrant signed by a judge – not just an administrative warrant.

“Talk to employees and let them know that (ICE) needs a warrant signed by a judge with that employee’s name on it,” she said.

If ICE has a warrant signed by a judge and requests I-9s, Morzy said employers have up to 72 hours to turn those in, so don’t rush. She said depending on the situation, employers may be able to request a longer period of time if there’s an emergency or a business necessity.

She encouraged employers to work with an attorney when organizing I-9s to give to ICE. Also, make copies of anything that will be given to the government. “Have a complete record and documentation of what you provided,” she said.

Editor’s Note: During the webinar, Morzy said her suggestions should not be used as legal advice because all cases are different. She said to consult with a qualified attorney regarding specific cases.