With a crackdown on illegal immigration, ICE has emphasized enforcing I-9 compliance through audits and raids. The construction industry appears to have been specifically targeted.
ICE Audit vs. Raid
An ICE audit is when an employer is required to produce I-9s with supporting documents in a very short time frame, usually three days. The Notice of Inspection or subpoena for the audit is usually mailed but may be hand delivered by ICE agents.
An ICE raid is when ICE agents come to the jobsite with a search warrant. In the unlikely event an ICE raid happens at your jobsite, you should review the search warrant and comply with it. You can make objections to searches outside the scope of the warrant, but do not obstruct the agents. It is recommended that you accompany them during their search, but do not answer any questions.
What should you do to prepare?
Establish an internal policy to maintain copies of I-9s and supporting documents. These documents need to be the original paper forms and employers should keep copies of the supporting documentation (passports, licenses, social security cards, etc.). I-9s should be stored at the main office and if ICE shows up at the jobsite, direct them to the main office for review. Like all employee documents, these documents should be in a locked container, preferably in a locked office, with access only to necessary management.
Designate a crisis management team or person in case there is a site investigation. This person should know where the I-9s are and make sure they are properly maintained. All employees should know who this person is and, if ICE arrives, they should be the point person to speak with ICE about any audit or raid.
Tell employees it is up to them whether they want to talk to ICE. Make sure they know this in advance of any raid or audit.
What should you do if ICE comes to the jobsite?
If ICE comes to the jobsite for an audit, raid, or otherwise, Employers should not direct employees not to speak to ICE or to flee the area.
Keep this in mind if ICE arrives:
1.The Designated Point Person should handle all interactions with ICE agents.
2.Verify the Credentials of the ICE agents: Is the warrant signed by a judge? Does it include the address of the jobsite? Does it provide a timeframe for the warrant to be executed? Does it describe the scope of the search?
3.Limit Access: ICE agents are not allowed to enter non-public areas without a warrant. If they have a warrant, the designated company point person should accompany them during their visit.
4.Document the Encounter: Keep records of the agents’ names and badge numbers, particularly the lead agent.
5.Everyone has the right to remain silent and can request access to an attorney.
Administrative Warrants
Sometimes ICE or the Department of Homeland Security will come to the job site to arrest or detain one person. These officers do not have a right to go into non-public areas without consent. However, they can wait in a public area (like a parking lot) for an employee to finish working. It is up to you if you want to allow them onto the jobsite.
Sidenote about E-Verify: Florida requires all new hires after July 1, 2023, at companies with more than 25 employees, be screened through the E-Verify online process. Participating in E-Verify does not make companies any more susceptible to an ICE raid or audit.
Practical Points
- ICE Audits are time sensitive. Make sure to read the notice or subpoena and request an extension, if necessary.
- ICE Raids are uncommon but be prepared just in case.
- How to Prepare for ICE Raid or Audit:
- Establish an internal policy to maintain copies of I-9s and supporting documents.
- Designate a crisis management team or person and make sure employees know who you have designated.
- Tell employees it is up to them if they want to talk to ICE in advance of any raid or audit. Do not mandate if they do or do not.
- If ICE does come to the jobsite, the designated point person should take charge and verify the credentials of the ICE agents, limit access, and document the encounter.
