AM Law Alert Update : What To Do When ICE Shows Up at Your Jobsite

by Tony Stergio, Ben Westcott, Bryan Acklin, and Nallely Rodriguez

In the early days of the second Trump Administration, ICE has conducted raids in Chicago and New York City, while other raids are planned for Aurora, Colorado. The Administration has stated that it is planning to perform raids in three cities per week for an unknown period. More targeted operations (short of actual raids) have taken place in North Texas. ICE agents were also recently spotted near a Northeast Houston high school, raising concerns that ICE raids could soon be conducted in Harris County.

It is, therefore, important for contractors to know what to do when DHS/ICE shows up at your office or jobsite. What you can and cannot do depends on the scenario presented.

An ICE Worksite Raid

The Scenario

• DHS/HSI/ICE arrives at the employer’s premises without warning – hoping to catch employers and employees off guard.
• When ICE arrives at the employer’s premises, its agents surround the premises and may have aerial presence via airplane or helicopter. The HSI agents enter the business with a judicial warrant. The warrant will have a detailed description of what and where agents are going to search and potentially seize.
• Additionally, during a worksite raid, if ICE discovers unauthorized workers at the site, they will arrest, detain them, and place them in immigration proceedings.

The Warrant

• It is important to note the distinction between judicial warrants and administrative warrants.
• A judicial warrant is an official court order signed by a judge or magistrate that authorizes a search of private property, seizure, or arrest based on probable cause that a crime is being committed or has been committed. A judicial warrant will:
  • Specify the specific address to be searched
  • Specify the time period in which the search must take place
  • Particularly describe the place or person, or both, to be searched and things to be seized
  • Be issued by a court and signed by a Judge or magistrate
• An administrative warrant is a document, issued by a federal agency such as DHS/ICE, purporting to document their authority to arrest a person suspected of violating immigration laws. These administrative documents are not signed by a magistrate or judge but rather an immigration officer (e.g., ICE agent or immigration judge). Administrative warrants do not give ICE officials authority to enter a place where there is a reasonable expectation of privacy, without consent.
• If ICE agents present a valid judicial warrant, then the employer must allow them access to restricted/private areas at the work site.
• If ICE agents present an administrative warrant, then the employer is not required to provide them access to restricted/privates areas at the work site. However, the agents may enter and/or search any public areas of the work site.
• A judicial warrant can compel employers to turn over documents, such as records indicating or referencing:
  • Work authorization status (e.g., Form I-9s and copies of documents used to support I-9s)
  • Wage and hour records (e.g., payroll summaries, pay stubs, timesheets)
  • Employment agreements
  • Employee rosters
  • Communication with outside payroll services on labor provides
  • Employee ID cards

What should employers do:

• Contact counsel immediately.
• Record the names of the federal agents involved.
• Provide federal agents with access to your facility, if they present a valid judicial warrant.
• Assign company representatives to accompany each federal agent as they move around your workplace.
• Object to any searches that are outside the scope of the judicial warrant.
• Protect and withhold attorney-client privileged documents to the extent possible.
• Obtain and/or prepare a list of items seized during the search, if any.
• Workers encountering federal agents at the worksite have the right to remain silent and to ask for an attorney at all times. Employers may (but are not required to) tell employees that they can choose whether or not to speak with ICE, but employers must not direct employees not to cooperate with ICE.

How does ICE choose who to raid?

Based on recent raids, ICE appears to be targeting workers with a criminal history; however, during such raids, ICE may question and detain unauthorized individuals who are found in the same location as the individuals who are being targeted (termed “collateral arrests”). ICE has also traditionally targeted businesses with a large Hispanic workforce (e.g., meat processing plants), based on tips/complaints disgruntled employees, and businesses with a history of I-9 violations.

How many ICE raids can we expect

In the first Trump Administration, ICE conducted approximately 50 worksite raids. Given the aggressive start in ICE raids, we can expect more this time around. But note that the manpower and the budget needed for large raids such as this are not unlimited. Thus, it is anticipation that the frequency of the ICE raids will decrease after the first few months of the second Trump Administration.

DHS I-9 Audits

Scenario

• DHS/HSI agent appears at the worksite. The agent produces a “Notice of Inspection” requiring the employer to produce original Form I-9s, copies of supporting documentation, E-Verify cases, if applicable, and other workforce-related documentation (e.g., contractor and staffing agency agreements, federal/local government contracts, etc.) within three business days.

What to Expect

• Employers should contact their employment/immigration counsel
• Then, as part of the audit, employers can expect to receive the following:
  • Notice of Suspect Documents: This notice serves to inform the employer that ICE has reason to believe that an employee of the employer is unauthorized to work. The notice allows the employer and employee to submit additional documentation to ICE if they believe there has been an error.
  • Notice of Technical or Procedural Failures: This notice serves to inform the employer of technical violations (as opposed to more serious substantive violations) identified during ICE’s inspection and gives the employer 10 business days to correct the forms at issue.
  • Notice of Intent to Fine: Audits may result in civil penalties ranging from $281 to $2,789 per I-9 for improper completion of I-9 forms (e.g., failure to timely complete Sections 1 or 2, failure of the employer to sign Section 2, or employer acceptance of expired or otherwise invalid documents). Employers that are found to have knowingly hired or continued to employ unauthorized workers may be subject to monetary penalties reaching up to $27,894 per count and criminal exposure.
  • ICE can increase or decrease the base civil penalties described above by up to 25% depending on several factors: (1) the employer’s size; (2) the gravity of the violation; (3) the involvement of unauthorized worker(s), if any; (4) the employer’s prior violations, if any; and (5) the sincerity of the employer’s compliance efforts.
  • Employers can choose to pay the proposed fines or challenge the proposed fines. In most cases, the employer will likely benefit from appealing the proposed fines and attempting to negotiate a reduction.

Law Enforcement Agents Inquiring on Possibly Unverified Employee(s) Suspected of Crimes

Scenario

• Employer receives a call or visit from a law enforcement agent seeking to arrest or talk to a particular employee as part of a criminal investigation.

What Should Employers Do

• First, confirm that the person or persons purporting to be law enforcement agents are who they purport to be. Recent reports have confirmed increased criminal activity involving bad actors posing as ICE agents to target vulnerable individuals. As always, employers continue to have a duty to safeguard certain private and sensitive information about their employees. These circumstances make it especially important that employers confirm the identity of anyone representing themselves as law enforcement, especially through telephonic means. Authentic law enforcement agents will gladly present and confirm their credentials upon request.
• Absent a valid arrest warrant or judicial warrant, as described above (administrative warrants are insufficient),  employers do not have to cooperate by providing information or access to employees in private areas. But refusing to assist in these situations could lead to employers being more targeted for more serious scenarios set out above. Moreover, because intentionally providing false information to a governmental agency is a federal offense, employers who choose to cooperate by providing information should take pains to confirm the veracity of any information they elect to provide.

For more information, please contact Tony Stergio, Ben Westcott, Bryan Acklin, or Nallely Rodriguez.

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