President Trump’s second attempt at a travel ban arrived this week, with provisions intended to prevent it from being blocked in court, as the first one was. On Wednesday, Hawaii became the first state to challenge the new immigration order in court, but there’s no sign Trump plans to relent. He has promised to increase the Immigration and Customs Enforcement (ICE) force by 15,000 officers, many of whom will be tasked with ensuring employers’ compliance with immigration law.
There are approximately 11 million people living in the U.S. without documentation, meaning the likelihood that an employer has undocumented workers on staff is considerable, especially in industries like manufacturing, agriculture, hospitality, and construction. Companies in and outside those fields are already gearing up for ICE raids on their worksites. Here’s what you need to know to prepare.
Form I-9 is the ICE’s main enforcement tool. Since 1986, it’s required employers to confirm their employees’ ability to work in the U.S., and ICE in turn has the authority to inspect employer records to make sure that’s the case. When employers are found to not be complying, ICE can fine them thousands of dollars for each instance of violation. For federal contractors, immigration violations can also mean lost contracts, and publicly traded companies may be required to report their violations to the Securities and Exchange Commission, which can cause stock prices to tank.
But employers have rights, too. To initiate an investigation, ICE must supply a subpoena in the form of a Notice of Inspection. An employer that’s been subpoenaed then has at least three business days to provide ICE with Form I-9s and related documentation. Since employers can never know whether they’ll be inspected, their best protection is preparation.
And since employers don’t always know when employees present false documentation, protection from an ICE audit starts with an internal audit. I-9 audits can be done quickly and at reasonable costs compared to the potential liabilities that violations can cause. Employers should designate somebody who’s trained to conduct the audit to carry it out, whether internally or an outside HR consultant or attorney.
At minimum, a good audit should cover every current employee, but it’s worth looking through recently terminated employees’ records, too. An I-9 audit should also follow a checklist that sets the standard to which all employee documentation will be reviewed; the Department of Justice offers some guidance on what that should entail.
If your audit turns up no irregularities, great—but if you do find that some forms need to be corrected, tread carefully. Section 1 of Form I-9 must be corrected by the employee, which means it falls to employers to let their employees know whenever that’s the case.
Some states, like California, impose strong sanctions for employers that improperly discipline employees for immigration compliance issues, and unions can be fiercely protective of their members when employers inquire about immigration status. In fact, it isn’t uncommon for efforts to fix I-9s to trigger claims of discrimination. For example, an employer with employee populations spread out across the country may have different standards of I-9 execution, and trying to remediate those issues could lead to treating a subset of employees in one location differently than another. That’s a no-go. Anytime you’re conducting an internal audit or discussing I-9 issues, it’s crucial to treat all employees consistently.
If an employer learns that an employee is undocumented, the company is required by law to terminate that employee. However, many employers want to offer support to valuable team members who may be undocumented. One proactive thing to do if you suspect you may have undocumented workers on staff is to set up relationships with attorneys who can offer qualified advice confidentially. This way your employees can get support without revealing their identities to management. As an employer, there’s also nothing preventing you from pointing your team members toward legal resources online or through nonprofits like the American Immigration Counsel.
ICE generally comes unannounced to a worksite to start an investigation, which can precede the issuing of a subpoena. These visits can be extremely disruptive and can frighten employees needlessly. To minimize any fallout, employers should get a protocol in place.
Appoint people on staff to interact with ICE agents should they arrive, and train them on how to be cooperative without putting staff at risk. They’ll be in charge of keeping ICE officers in a location where they won’t interact with customers and employees. In addition, the selected point people should know how to contact the company’s human resources and legal departments as well as outside counsel immediately.
Just because an ICE officer visits doesn’t mean they have permission to talk to employees or walk the premises without a proper warrant. You don’t have to be combative in order to prevent that from happening. Nor are employers required to turn over documents without a subpoena or warrant.
The Trump administration’s new era of immigration enforcement is less than 100 days old. Immigration remains one of the most complex, misunderstood, and emotional issues today—and for good reason. But politics aside, employees need to get to grips with the importance of immigration compliance or else face the consequences. They can protect themselves and their employees by getting their own house in order, before ICE officials do it for them.
Davis Bae is the regional managing partner of the Seattle office of Fisher Phillips, a national labor and employment law firm that represents employers.