President Trump made it clear on the campaign trail that cracking down on immigration is one of his main priorities, vowing to track down, arrest, and deport people residing in the U.S. Without legal status.
As some of his first acts in office, Trump has signed an executive order attempting to limit birthright citizenship, increase border protections, and enforce the removal of people without legal status to the fullest extent possible. He also signed an executive order last week to cut federally funded programs that provide financial benefits to people without status, although most undocumented immigrants aren’t able to access government benefits anyway.
For employers, the president’s focus has sparked concern over whether U.S. Immigration and Customs Enforcement (ICE), the agency in charge of enforcing immigration laws, will come knocking on their office door and disrupt their operations. Roughly 37,660 people have been deported during Trump’s first month in office, Reuters reported, and Trump has made it clear that those efforts haven’t been fast enough. Immigration officials have reportedly been told to make between 1,200 and 1,500 arrests a day, according to a recent internal memo, reported on by The Washington Post. As a result, two top ICE officials were demoted earlier this month due to slow progress.
Historically, these kinds of raids have happened in industries like agriculture, manufacturing, hospitality, or construction, says Ali Brodie, a partner at Fox Rothschild’s immigration practice. But under the new administration, she says, “every business in America is fair game.”
The Immigration Reform and Control Act (IRCA) requires companies to verify an employee’s eligibility to work, which is typically done through an I-9 form. Should ICE be tipped off from members of the public or other federal agencies about undocumented workers at a certain job site, the agency may decide to perform an I-9 audit, during which ICE analyzes an employer’s records to ensure compliance with immigration laws. And if ICE has reason to believe that one or more undocumented people are on the premises, they may decide to conduct a raid—unprompted visits during which federal agents may question, detain, or arrest people on site.
“We’re already seeing a return of the ICE audit since Trump took office. And for corporate clients and others, it’s causing real chaos and panic about the possibility of a raid.” Says Brodie.
Even the suggestion of a raid can be disastrous for a company. After a recent viral TikTok video falsely claimed a popular restaurant in the town of West New York, New Jersey, had been raided, the owner told ABC News that business dropped 80%. And aside from the immediate profit and loss considerations, the ramifications of raids on workplace culture are severe. “Employees may fear coming back to work, or they might fear the stability of that employer as a result of the enforcement action,” says Brodie.
With this new immigration direction in full-force, Brodie and other labor and employment lawyers Coins2Day spoke with all shared the same advice: business leaders need to prepare their workplaces for possible raids and audits now. That includes making sure their I-9 and visa documentation is in order, designating key managers to interact with ICE, and training employees about what to do if ICE comes knocking, according to Spencer Hamer, a labor and employment lawyer at FBFK law.
“This is the time for companies to be working with their outside counsel, their HR teams, to make sure those I-9 documents are in order and their workplaces are prepared,” he says.
Get your documents in order
Having all necessary documents organized, up-to-date, and in an easily-accessible location is critical. “As an employer you don’t want to be scrambling to find the right papers during a raid when ICE agents are at your facility,” says Hamer.
While all employers are required to complete the I-9 verification process for new hires, the process isn’t quite as simple as it may seem. The document itself tends to be “very challenging” for companies to get right, and is often the “single most expensive form for employers in their onboarding paperwork,” notes Brodie, referencing potential costly penalties.
“Companies are busy and not everyone will prioritize this, but submitting a single form one day late can cost hundreds of dollars in fines.”
Businesses under pressure to hire quickly may be tempted to cut corners, but that can be expensive. Penalties for improper I-9 documentation range from a few hundred to a few thousands dollars. And businesses that have received multiple violations and are found to have knowingly hired these folks could face tens of thousands of dollars per violation, lawyers say.
In some states, companies with I-9 violations may also be subject to suspension or termination of their business licenses. If worse comes to worse, businesses could also be subject to criminal charges, which sometimes include heftier fines related to trafficking, ICE notes on its website.
Lawyers say that employers should have a process for handling expired authorization documents for current or former employees. I-9 forms must be kept on file for three years, or one year after an individual’s last day, whichever is later. It is considered a best practice to conduct regular self-audits of I-9 forms for compliance issues so corrections can be documented promptly. Employers should also consider using E-Verify, a Department of Homeland Security website that allows businesses to determine the eligibility of their employees, for additional confirmation of work authorization.
Prepare the workplace
If ICE comes calling, companies need an action plan.
That includes alerting legal representation, and designating a “point person” to interact with agents, someone with training on these issues who can answer questions, and take notes on what’s going on to relay with executives later, says attorney Patricia Gannon, partner and chair of Greenspoon Marder’s immigration and naturalization practice group.
Most importantly, this person should be in charge of first asking officials if they have a subpoena to request documents or a search warrant that allows them to scout around the office, Gannon adds. This paperwork needs to be presented to the employer and be properly signed by a state court judge; otherwise employers don’t have to recognize it.
Additionally, it’s important to note that while ICE can enter certain public workplace areas, such as a reception space, agents are not allowed to enter private spaces such as break rooms or storage areas without a search warrant. Employers aren’t legally allowed to impede a search, but they can object to an officer’s actions should they feel it’s “outside the scope of the warrant,” such as trying to access a private area not included in the warrant.
“If you want to delineate between public and private spaces, go online, order a bunch of nice signs that say private, put them up around the workplace and there you go,” says Gannon.
Try to help employees, but don’t get too involved
Lawyers say that companies should avoid giving legal advice directly to their employees, and employers can’t tell employees to not speak with federal agents. But employers can remind workers of their rights, and connect them with outside legal organizations.
Employees are not required to answer questions from ICE officers or other government officials about their legal status or how they entered the U.S. They have the right to remain silent and ask for legal presentation. Federal agents will also sometimes tell employees to move into groups based on their immigration status. Employees do not have to comply with this, Gannon says.
“Most people I think just get really intimidated, break down, and tell officers everything when they don’t need to,” she says.
The American Immigration Lawyers Association has created a “Know Your Rights” poster, and Brodie says that she and other attorneys are advising their clients to display it for workers in private spaces where employees congregate, like a break room. Employers can also provide contact information for licensed immigration attorneys outside of the company so that staff can reach out, or provide references to immigration support groups.
What may help employees the most is for employers to document the entire raid, by taking notes or video. They can also reach out to the families of those who may be affected to alert them as to what has taken place, says Stephen Toland, an attorney at law firm FBFK.
“There may be some employers who are just sort of sitting on the sidelines and not necessarily putting the plans in place, they have this wait-and-see type attitude,” says Toland. “With continued momentum around immigration, employers are going to have to start taking the possibility of raids more seriously.”
