Editor’s Note: Jennifer G. Parser is a member of the Labor and Employment and Immigration Practice Groups of Ward and Smith, P.A.

The Current Situation

Since April 2006, U.S. Immigration and Customs Enforcement ("ICE"), an agency of the U.S. Department of Homeland Security, has expanded its enforcement strategy by aggressively conducting unannounced worksite investigations. These investigations are conducted in cooperation with local and state law enforcement agencies and can subject an employer to criminal and financial sanctions for immigration law violations.

The presence of any one or more of the following circumstances may indicate that an employer is, or soon will be, under investigation by ICE:

• Evidence of ICE surveillance such as a "stake out";

• Detention and questioning of employees by immigration authorities;

• Receipt of numerous no-match letters from the Social Security Administration or receipt of one no-match letter covering many employees;

• Previous ICE audits to check employee Form I 9s;

• Tax or labor violations found by state or federal regulators; and,

• Any situation involving national security, public safety, or worker exploitation.

If ICE receives information about possible immigration violations, ICE will investigate the merits of the information, usually through use of undercover agents, surveillance, and cooperating employees, including HR personnel, to gain information on the employer.

ICE Raid

ICE may take days, months, or even years to assemble its case against an employer. ICE will present its evidence to the local United States Attorney who will decide if there is adequate probable cause to believe that a criminal offense has been, or is being, committed and whether a search warrant should be issued and criminal charges pursued. If there is adequate probable cause, a search warrant can be issued almost immediately, and a raid will ensue.

Armed with a search warrant, ICE usually makes a forceful and intimidating entrance, arriving with armed agents and sealing off all entrances and exits. During the raid, a representative of the employer will be served with the search warrant, business operations will be shut down, and employees will be summoned to a central location and questioned individually. No one will be permitted to leave the premises until ICE has concluded its on-site investigation.

The documentation that may be seized under a search warrant can include Form I 9s (and copies of employees’ identification documents submitted as part of the employment verification process), payroll records, Social Security Administration no-match letters, and bank and accounting records including financial records which may indicate the existence of a separate payroll system. The search warrant also may authorize the seizure of computers, hard drives, and data storage equipment. The employer must produce the items listed in the warrant and allow its employees to be questioned. Warrants that are not specific as to documentation or items to be seized may be subject to later challenge, as can the method and scope of interrogation of employees.

In addition to seizing records, ICE agents can legally ask employees about their place of birth and nationality, and the employee can be refused exit until these questions are answered. No further questions may be asked unless the ICE agent has a "reasonable suspicion" that the employee is working illegally or has knowledge as to the location of documents or other items that may be seized pursuant to the search warrant. Any documents offered by an employee to prove citizenship may be confiscated, and employees who cannot present proof of employment authorization may be arrested.

ICE agents must prepare an inventory of documents and property seized from the employer and a list of employees arrested. The employer has the right to receive a copy of the inventory.

What Should an Employer Do When ICE Comes Knocking?

If ICE shows up at an employer’s facilities, the employer should call its attorney immediately. Additionally, an official of the employer should examine any search warrant for compliance with the requirements that it be signed by a judge or magistrate and provide specific dates and times with which ICE must comply. ICE agents should be accompanied by an employer representative the entire time they are on the premises; however, no attempt should be made to interfere with the taking of evidence not covered by the warrant. An illegal taking is best addressed later in court. The employer representative should request the opportunity to make copies of any evidence seized by ICE. Under no circumstances, and no matter how tempting, should the employer, its officers, or its HR personnel make any statements to ICE about company practice, policy, or any employees. Also, an employer must never attempt to conceal employees, assist them in leaving the premises during an ICE raid, or coach them as to how they should answer questions.

What Could Be the Result of an ICE Raid?

Based upon what it uncovers in the course of its raid, ICE may pursue charges ranging from employing or harboring undocumented workers to money laundering. The penalties for these types of charges are severe and can include up to ten years of imprisonment and thousands of dollars in fines. The amounts of fines and restitution levied against offending employers have increased exponentially in recent years to over $30 million in 2007. Fines may be levied and prison sentences can be imposed against the company’s officers, managers, and HR personnel. The government even has successfully argued that the personal bank accounts of such employees be used to pay the employer’s fines.

What Can an Employer Do to Minimize Its Exposure in the Event of an ICE Raid?

The best way to prepare for, and to survive, a raid by ICE is to comply meticulously with employment verification procedures and establish an in house training and audit program for Form I 9 compliance.

The following are steps all employers should have in place to minimize exposure to liability in the event of an ICE raid:

• Meticulously complete Form I 9s for all employees and retain the Forms for three years after the date of hire or one year after the date employment is terminated, whichever occurs later;

• Conduct in-house training and put audit policies in place to ensure compliance with correct completion and maintenance of Form I 9s;

• Re-verify any employee’s employment authorization if an authorization document provided by the employee is about to expire;

• Fully complete or correct all incomplete or mistaken Form I 9s, and initial and date the completion or correction;

• Separate all employment verification records, including Form I-9s, from other personnel records;

• Have a consistent policy in place in the event of receipt of a no match letter from the Social Security Administration;

• Maintain a payroll record of all current and former employees for the past three years;

• Ensure that all owners, officers, and HR personnel are aware of the criminal and financial consequences of having actual or constructive knowledge of hiring or harboring employees who are not work authorized; and,

• Have an anonymous call line available for reporting immigration violations and act immediately on any credible information received.

While following the above procedures cannot insulate an employer entirely from ICE investigations, it will go a long way in lessening the effects of any such investigation.

© 2009, Ward and Smith, P.A.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Jennifer Parser practices in the Labor and Employment and Immigration Practice Groups of Ward and Smith, P.A., where she concentrates her practice on business immigration, particularly investor visas. Jennifer’s practice is limited to Federal Immigration and Naturalization Law. She currently is licensed in New York only. For further information, contact Jennifer Parser at jgp@wardandsmith.com.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.