In the post-Inaugural blitz of executive actions, employers should have a plan of action in case federal agents visit their company. Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) are the most likely federal agencies to visit a workplace for either an enforcement action or an I-9 audit. Less well known than ICE, CBP agents may visit a company for an enforcement action within 100 miles of an international border with the U.S.
Employers should plan ahead if they anticipate interaction with federal agents regarding immigration-related matters. This will look different for each company, and it is a good idea to work with legal counsel to establish protocols ahead of time. Here are some general information and guidelines to consider.
Enforcement Actions (ICE and CBP, if Applicable)
ICE and CBP federal agents may visit an employer for a site enforcement action, which can result in searches, questioning, or detention. Certain enforcement actions can occur without prior notice to employers or employees. For an enforcement action, federal agents should arrive with a warrant, which may be either judicial or administrative. Determining whether the warrant is judicial or administrative as quickly as possible after being presented with the warrant is of the utmost importance:
- If federal agents present a judicial warrant, then agents have the right to be on the premises, to speak to employees and the Designated Company Representative (DCR) (see below for more discussion about the DCR), and to search and take applicable documents. Judicial warrants are the most expansive, and a valid judicial warrant must be signed and dated by a judge. It must also include the date and time of the search, and include a list of items to be searched and taken (which may include payroll records, employee records, and other employment-related documents listed in the judicial warrant).
- If federal agents present an administrative warrant, then the DCR and the employer have discretion to decline the agents’ request to enter a private area without a judicial warrant. However, federal agents will still have access to public areas of the company and “look” at anything in “plain view.” This extends to any visible documents, including computer screens, and any ongoing conversations that can be overheard by federal agents. Absent a judicial warrant, the DCR may object to actions specifically related to employees. Additionally, employers do not have to provide information about employees, and employees do not have to speak with any federal agents.
Best Practices for Enforcement Actions
Employers can and should appoint a DCR, which is a designated company representative, who speaks with federal agents on behalf of the company. The DCR should be adequately trained to interact with federal agents and serve the primary point of contact. Staff should be trained to notify the DCR immediately if federal agents arrive. In the event of a visit, the first individual to identify the visit can request that federal agents wait until the DCR is available to proceed. A company can also have more than one DCR in case someone is absent or there are multiple shifts to cover.
It is important for the DCR to:
- Ask federal agents to identify themselves and the purpose of the visit.
- Request and review any documentation and determine if the federal agents have a warrant, and what type of warrant they have, if any (which may be either a judicial or administrative warrant), which will guide the visit.
- Follow the company’s protocol for enforcement actions.
- Document the interaction, including taking notes, photos, or videos of the visit.
- Alert legal counsel and inform them of any interactions with federal agents right away.
In addition to selecting and training a DCR, a company should do the following:
- Train receptionists, greeters, and any other front-of-house employees to ensure that they know how to respond and to alert the DCR if agents visit.
- Train employees to ensure that they know who to contact (a DCR) if federal agents arrive.
- Develop a plan that outlines roles, responsibilities, and procedures for different types of federal visits.
I-9 Audit (ICE Only)
Form I-9, Employment Eligibility Verification (I-9), confirms an employee’s identity and authorization to work in the U.S. and must be completed within three days of hire. Employers should ensure that they are correctly completing I-9s and conducting regular internal audits to ensure that I-9s are complete.
In an I-9 audit, ICE will issue a Notice of Inspection to employers. Employers receive notice at least three business days in advance to produce their company’s I-9s. ICE will then conduct an inspection of the business, during which they can analyze compliance in reviewing I-9s and supporting documents. This process could take weeks or years to be completed.
In the event that ICE finds employees who are not authorized to work in the U.S., employers will receive at least ten days to provide valid work authorization for these employees. If employers are unable to provide valid work authorization for these employees, the employer may be asked to terminate those employees. The employer will be required to inform affected workers of the audit and results.
Employers risk fines and penalties for: (i) knowingly hiring employees who are not authorized to work in the U.S., (ii) continuing to employ employees who are not authorized to work in the U.S., (iii) failing to correct deficient I-9s, and (iv) failing to produce I-9s during an audit or missing I-9s for employees. Additionally, non-compliance can result in the loss of any government contracts.
Conclusion
If federal agents visit your company for immigration-related matters, it is important to stay calm and remain cooperative. However, employers, DCRs, and employees should remain steadfast and assert their rights when legally appropriate (including the right to remain silent and contact an attorney). If you would like to discuss potential immigration agent visits and protocols, please reach out to Rob Fafinski or the rest of the Corporate or HR & Employment Teams.
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