ICE Could Come Knocking: Employers Should Be Prepared as Business Raids Increase

by Bradley Arant Boult Cummings LLP

Employers– the chances that you could receive a visit from immigration officers have increased. Recently, U.S. Immigration and Customs Enforcement (ICE) agents conducted “raids” at eight Asian restaurants in Mississippi—in Clinton, Flowood, Madison, Meridian, and Pearl. Fifty-five restaurant employees, all undocumented, were detained during the raids. According to one immigration advocate, enforcement raids have “blown up” over the past two weeks in the Deep South. However, employers in other areas of the country should not be complacent as the ICE website also reports the arrests of 248 in Pennsylvania, West Virginia and Delaware in the last two weeks.

Department of Homeland Security Secretary John Kelly said the ICE raids were part of “a series of targeted enforcement operations” for undocumented immigrants. For years, ICE has prioritized detaining undocumented immigrants who have been convicted of a crime. These raids suggest a broader approach under the Trump administration with ICE making so-called “collateral arrests”– checking employee papers during raids and detaining anyone who is undocumented. However, Thomas Byrd, spokesman for ICE’s New Orleans field office, which oversees immigration enforcement in multiple states in the Southeast, said “ICE conducts targeted immigration enforcement in compliance with federal law and agency policy. ICE does not conduct sweeps or raids that target aliens indiscriminately.”

Since 1986 employers have been required to check the work authorization of every worker using the familiar Form I-9. In 2012, ICE developed a “comprehensive worksite enforcement strategy” describing its focus on critical infrastructure worksites and employers who exploit undocumented workers. The U.S. Citizenship and Immigration Service recently published a revised Form I-9, which became mandatory the day after President Trump’s inauguration.

With the increased emphasis on immigration enforcement, and the risk of heavy civil penalties and even potential prison time for knowingly employing undocumented workers, businesses should, at the very least, take the following steps:

  • Ensure that your I-9s are in order and conduct periodic internal audits to assess the status of all I-9s.
  • Ensure your worksites and staffs have proper training for I-9 implementation.
  • Enroll in and utilize E-Verify, an internet system that allows businesses to assess the status of their employees. Although E-Verify is generally voluntary, it is mandatory for federal contractors and may be under some state laws, so employers should check the states where they have worksites for E-Verify requirements.
  • If ICE does pay a visit to your business, remember that ICE must have a warrant to enter a business or arrest an employee. You should not panic or refuse to speak to them, but you and your employees do have the right to remain silent and speak to a lawyer.

Whereas ICE has traditionally provided notice of a prospective audit, the recent enforcement efforts were unannounced and reflect an expansive shift.  ICE’s targeted enforcement actions may be intended to promote the concept of “self-deportation,” where illegal immigrants leave the country voluntarily rather than through actual involuntary, forced deportation. As described by Emily Bazelon in a recent New York Times Magazine article, “[d]etention and deportation on a mass scale would be a gargantuan task – divisive, enormously costly and legally fraught. The only feasible way to get millions of undocumented immigrants out of the county, as Trump has promised, is to create a climate that induces immigrants to leave on their own.”

With the administration’s undeniable concentration on illegal immigration, reflected by ICE’s recent enforcement efforts in Mississippi, employers should take necessary measures to be prepared in this new environment.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bradley Arant Boult Cummings LLP | Attorney Advertising

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Bradley Arant Boult Cummings LLP

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