Voice of Business Blog

The new administration has declared a national emergency related to immigration and has made it abundantly clear it will ramp up workplace raids. Obviously, this encompasses, but goes way beyond, ensuring your I-9 forms are in order.

How does ICE get through your door? They will often be tipped off by another federal agency—the Department of Labor or OSHA, said Chris Thomas, who, with Greg Goldberg, both partners at the law firm Holland & Hart, co-hosted the recent webinar The I-9 and Immigration Compliance Workshop.

The criminal toolbox
There are more criminal statutes the government can bring to bear if it wants, Goldberg pointed out, which means you must be vigilant.

There are two types of encounters with ICE agents:

Knock and talk, where ICE agents engage you in casual conversation in the parking lot or even at your kid’s soccer game. These conversations are often intended to gather evidence to take to a judge to get a search warrant. So don’t say anything, Goldberg advised.

Mandatory interactions, where ICE agents show up with a warrant. You and your employees have a Fifth Amendment right to not talk to the agents—exercise it.

In all cases, contact your company’s lawyers as soon as possible, Goldberg cautioned.

No warrant, no stuff
Carefully examine the warrant agents present to you. Are the agents in the right place? Does the warrant reflect the correct date and time? You can politely inquire if the date/time is incorrect, Goldberg said, but you should let them in anyway. Then get out of the way.

Don’t actively engage with the agents or explain what happened or your view of the situation. Warrants allow agents to get your books, records and even your computers. Get a receipt for what they take away, Goldberg advised. He also said you can photograph what’s being seized, but if the agents say no pictures, turn off the camera.

Your response, regardless of the circumstances of your interaction with ICE agents, should be curt but polite. Goldberg suggested something like, “I am happy to cooperate, but I need to contact the company’s lawyer. We’ll get back to you in a day or two.” This may not work if you’re presented with a warrant. If you are, say nothing and cooperate.

About those coming raids
Or more politely, worksite enforcement. Agents will have weapons, Goldberg stressed.

This is where unrelated federal agencies observing situations and making recommendations to ICE becomes key. The scene may be chaotic, but the advice is the same: You and your employees have a Fifth Amendment right to remain silent. These raids can snag individuals as well as companies. There’s no hiding behind the corporate shield, Goldberg warned.

How to minimize the damage
Your business will be imperiled if ICE arrests many employees. To avoid this, Thomas said, you should examine your I-9 documents and then ask an expert to do the same. To keep your business operating, phase out employees who aren’t authorized to work in the U.S. and hire employees who are. Thomas provided attendees with more advice on managing I-9 forms:

Keep track of employee changes, such as when an employee gets divorced and changes their name.

ICE will target electronic I-9s, so ensure your attestations in Sections 1 and 2 are in order.

Scrutinize your I-9 software. Some vendors aren’t providing the jurat, the portion of the form that says it’s signed under penalties of perjury. A pop-up box with the jurat is ideal.

If you’re going to enroll in E-Verify, don’t ignore it thereafter. If you don’t use it for every new hire or your response to tentative nonconfirmations is casual, ICE will say you have real problems and then alert the Department of Justice.

Source: Business Management Daily