Worksite Enforcement Investigations Are on the Rise

Erick Widman

Last month, the US Immigration and Customs Enforcement (ICE) confirmed through their news release what many already suspected:  there was a dramatic increase in worksite inspections, raids, and related arrests made by ICE in 2018.

According to ICE’s own data, they opened 6,848 worksite investigations in FY2018 compared to 1,691 in FY17.  This is an unprecedented 400% increase. Similarly, ICE also initiated 5,981 I-9 audits compared to 1,360 and made 2304 criminal and administrative worksite-related arrests compared to just 311 arrests in FY 2017.  This is following the agency’s commitment made in late 2017 to step up its worksite enforcement efforts across the country. Thomas Homan, the then-acting ICE Director who is now retired, claimed during a press briefing that he wants to see “a 400 percent increase in worksite operations” and that President Trump’s executive order in January 2017 mandated ICE to carry out all existing immigration laws instead of prioritizing who it goes after.  What resulted from this approach is ICE now targeting both employers and employees alike in their worksite enforcement activities.

One common misconception about ICE investigation is that it only affects employers who hire foreign nationals.  This is definitely not the case. ICE can conduct a random worksite inspection on any company that employs at least one employee, even if that single employee is a US citizen.  It is also common for companies to either not know about their I-9 requirement or think that they are exempt from completing a Form I-9 if they hire only US citizens. However, company owners must comply with I-9 requirements for all of their employees regardless of their nationality or work eligibility.  It also does not matter that the employer is a small business hiring only a handful of family members as employees. Even if the employee was hired for just one day, the employer will be in violation of I-9 compliance if he or she didn’t properly maintain the I-9 form.

An investigation from ICE can take two different forms: one is an administrative inspection (I-9 audit) and the other one would be a worksite raid.  For administrative inspections, typically the employer will get a visit from ICE agents asking to see the company’s I-9 Forms. ICE agents conducting I-9 audits usually do not come with a search warrant unless it is part of a raid.  It is important to know that the employer is not obligated to produce the I-9 Form on the spot, and is entitled to a 3 days notice period. ICE officers also need the employer’s consent to enter non-public areas of the business premise.  Unless they present a valid warrant, employers may withhold consent to their entry. On the other hand, worksite raids are typically conducted with a search warrant and they happen without any advance warnings. If ICE officers present a search warrant, employers should inspect the warrant to make sure it is signed by a judge and review its details such as the premises the list of items to be searched.  An employer may accept the warrant but still not consent to the search. In this case, the search will proceed but the employer can later challenge it if there are grounds to do so.

For both administrative inspections or worksite raids, it is important to remember that both the employer and employees have a right to an attorney and the right to remain silent.  A company representative may call the immigration attorney immediately prior to the inspection and inform ICE officers that he or she is doing so. Employees are also entitled to their own attorney.  Employers cannot direct employees on how to respond to ICE officers, but if questioned by ICE about their nationality or immigration status, employees have the right to remain silent. It is best to remain polite and cordial to ICE officers to the extent possible and not engage in an argument or debate, but employers can certainly take notes of the officers’ name, the premises entered, the items seized, and also request a copy of the search warrant, if any.  The company representatives who are likely to first encounter ICE officers during worksite inspections should fully understand their rights, how they would engage, and what privileged documents can be protected.

Despite the lack of federal funding that might affect ICE’s operation early this year, it is reasonable to expect that ICE’s administrative investigations and raids will remain their top priority and the number will continue to be high throughout FY2019. This would be a good time for any U.S. employers, big or small, to have a clear action plan in place in preparation for a possible worksite investigation from ICE.

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