Protecting Your Business & Employees From ICE Raids

Prepare yourself, ICE raids are coming. ICE raids are a coordinated effort by the Immigration and Customs Enforcement agency (abbreviated as ICE) under the Department of Homeland Security to detain and deport undocumented workers.  During these sweeps, ICE has been known to arrive with guns and dogs to investigate worksites and employee files of suspected employers of undocumented workers.  Not surprisingly, employees, managers, and owners of businesses across the nation are scared.

President Trump signed an executive order in February that (i) tripled the number of ICE officers and (ii) significantly broadened the scope of priorities for targeting individuals for deportation than under the previous administration.  In February of this year, ICE made over 600 arrests in one week across the nation.  And the raids continue.

But there are concrete actions you can take and procedures you can put in place now to ensure that your business and your employees will be able to get through an ICE raid.

ICE Raids In the Last Decade

We may see a resurgence of raids similar or even more severe than the sweeps of 2008 and 2009 when ICE raids targeted the restaurant industry from small restaurants to large chains.  Some of the notable cases included 450 arrests of employees from Chipotle restaurants and a criminal investigation into some of the leadership of Chipotle that was eventually settled confidentially.  The French Bakery settled for hundreds of thousands of dollars in fines and the owner pleaded guilty to criminal charges for employing undocumented workers.  Under Obama, ICE narrowed their focus prioritizing removing serious criminals from the US and as a result, the number of employment raids and removals decreased.  

https://www.ice.gov/removal-statistics/2016

Fines collected from employers during ICE raids reached an all-time high of $9,476,273 in 2013.  Although fines have declined since then, the broadening of the scope and number of officers will likely mean a return to increased raids and fines.  

Get Your I-9s In Order

Avoiding fines and penalties is easier than it seems.  During my time in HR for a national restaurant chain, when ICE provided a subpoena with a 3 day notice to review our I-9s we passed without receiving a single fine, much less an employee arrest.

Understandably, hiring managers can be overwhelmed with the responsibility of verifying eligibility to work in the US.  The I-9, however, provides most of the instructions you need for staying in compliance.  Did you know that employees are not required to provide a driver’s license or a social security card at hire?  Employees are allowed to provide any combination of documents listed in the table on the form I-9 within the first 3 days of employment.  Completing the form I-9 is the verification that the employer has inspected the employee’s identification documents and the documents meet required standards.  Employers are not required to also keep photocopies of those documents.   

ICE legally has to provide a subpoena with a few days of warning before arriving at your workplace to inspect your I-9s.  In the rare event that happens, use that time to audit your existing I-9s.  You can correct many errors or oversights on the original I-9, but be sure to mark corrections with a “Self Audit” tag and date next to the correction.  As long as you are following proper I-9 procedures upon hire, you should have no problem surviving an ICE raid.

What about “No-Match” Letters?

Don’t forget about any Social Security “No-Match” letters you may have received. A “No-Match” letter is a letter from the Federal Government alerting a company that the social security number on file does not match the corresponding employee name.  Although the government retracted procedural mandates for addressing “No-Match Letters” don’t confuse this for permission to ignore these letters.  Employers are still required to take reasonable measures to communicate and resolve any social security mis-matches with their employees.  Ignoring “No-Match” letters in the past has resulted in fines or even criminal investigations into employers that blatantly ignore these letters.

Protect Your Company During an ICE Raid

An ICE raid is, while unlikely for most law-abiding businesses in the country, is a possibility.  But there are real tactical things you can do now to ensure your employees, your business, and you are protected.  

• Get your I-9s in order now for existing employees.  
• Set up a policy to verify documentation within the first three days of a new employee’s start date.  
• Know what is acceptable verification and what you do and do not have to keep on file.
• See any communication from the government, a subpoena or a “No-Match” letter, as a catalyst to take action.  

With those steps, you can stay on the right side of the law and rest easy.