The Management Series

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May 2017

What If Immigration Agents Come Knocking?

The Trump administration is building up a bigger immigration force to make good on the president’s campaign promise to crack down on undocumented workers, meaning workplace raids are bound to become more commonplace.

“While discussions about ‘sanctuary cities’ or the ‘travel ban’ are certainly worth having, only one of the topics de jour has the potential to have an immediate impact on your workforce: ICE raids,” warns labor attorney Jaklyn Wrigley. “Advanced preparation and proper response are key to ensuring that your business does not become part of the conversation.”

The Immigration and Customs Enforcement force, aka ICE, is the second-largest federal law enforcement agency. Wrigley describes how it operates and points out that, while activity is increasing, the agency was busy under President Obama as well. It helped deport some two million people during his administration.

“One way ICE carries out its responsibilities is to conduct enforcement and removal operations, through which ICE identifies and apprehends removable aliens,” she writes. “These operations are colloquially referred to as ‘raids,’ though ICE prefers the term ‘targeted enforcement actions.’”

Wrigley assumes employers understand that the easiest way to avoid trouble is to avoid hiring undocumented workers in the first place, meaning those who do not have the proper I-9 forms required for every worker.

However, she says, “it is not always that simple. For one, you may not realize that an employee submitted false information. Additionally, completing the Form I-9 properly can be complicated.”

Wrigley would like to see employers make sure their paperwork is in order through an internal I-9 audit.

“This is an easy and relatively inexpensive way to confirm that you are following the law,” she writes. “Plus, it affords you the opportunity to resolve any issues before ICE discovers them (though, you should tread carefully when making corrections).”

Wrigley also describes the two types of inspections ICE carries out: (1) an audit of I-9s and related documents and (2) an actual raid.

In an audit, ICE gives employers three days to produce specific I-9 forms. “Alternatively,” she says, “ICE may conduct a raid, which is significantly more disruptive.”

In a raid, ICE will have a warrant, which means it has convinced a judge the agency has probable cause. ICE will present the warrant and begin searching the office or facilities immediately.

Read it (and get a copy to your attorney ASAP) and make sure that ICE agents stay within its scope, although you should do nothing to interfere. Do not do anything that could be seen as harboring undocumented workers, including giving false or misleading statements or helping people leave the premises.

“Company representatives should not give any statements to ICE agents without first speaking with legal counsel (though, you cannot instruct employees not to speak to agents if questioned),” she adds. “Finally, if agents want access to locked facilities, you should unlock them and cooperate as much as you can.”

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