Employers Beware, and Be Ready: How to Prepare for an ICE Raid

By Willard Krasnow, Boston Office of Constangy, Brooks, Smith & Prophete, LLP

1.12.18

On Wednesday morning, officials from U.S. Immigration and Customs Enforcement inspected nearly 100 7-Eleven stores across the country, and arrested 21 employees for being illegally present in the United States. This is believed to be the Trump Administration’s largest immigration enforcement operation against an individual employer to date. The 7-Eleven raids and others are consistent with the Trump Administration’s announcement last October of its intention to increase significantly enforcement of the immigration laws in workplaces.

This week’s raids bring back memories of a March 6, 2007, ICE raid at Michael Bianco, Inc., a leather factory and government contractor in New Bedford, Massachusetts. As a result of that raid, 361 illegal workers were arrested and some were detained at a facility in Texas. Michael Bianco, the owner of the company, was sentenced to 12 months and a day in federal prison, plus three years of supervised release. He was also required to pay a $30,000 fine for helping to harbor and conceal illegal immigrants.

The Michael Bianco raid was criticized for disrupting families, which caused the Bush Administration to de-emphasize workplace raids and caused the Obama Administration to focus on I-9 compliance and penalizing employers rather than workers.

The 7-Eleven raids of this week arose from a 2013 investigation that resulted in criminal charges against nine 7-Eleven franchisees and managers for the illegal hiring of unauthorized workers. One franchisee was sentenced in April 2015 to 87 months in prison for employing the unauthorized workers.

Thomas D. Homan, the acting director of ICE, said regarding the 7-Eleven raids, “Today’s actions send a strong message to U.S. businesses that hire and employ an illegal workforce: ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.”

In announcing the new enforcement policy last October, Mr. Homan also said: “We will do it different. We will prosecute, detain and remove workers.”

This new policy of arrests and enforcement has produced results. There were nearly 30,000 more non-border ICE arrests during the first fiscal year of Trump’s term, which ended on September 30, 2017, than during all of fiscal year 2016.

What does this new policy mean for employers?

In this new enforcement climate, employers  must be sure to meet their obligations under the Immigration Reform and Control Act of 1986, which imposes civil penalties for violations and, potentially, criminal penalties for engaging in a “pattern or practice” of hiring, recruiting or referring for a fee unauthorized aliens.

Specifically, under the IRCA, employers are prohibited

a)   from hiring and employing and continuing to employ an individual for employment in the U.S. knowing that the individual is not authorized with respect to such employment.

b)   from hiring any individual, including a U.S. citizen, for employment in the U.S. without verifying his or her identity and employment authorization on Form I-9.

For violations of subsection a, civil penalties could reach $21,563 for each person illegally employed; and for violations of subsection b, civil penalties could reach $2,156 for each I-9 Form containing substantive violations or uncorrected technical violations.

In addition, as indicated, there are criminal penalties under the IRCA for engaging in a “pattern or practice” of hiring, recruiting or referring for a fee unauthorized aliens. The best advice is not to knowingly hire or to continue to employ even one unauthorized alien. Separate penalties apply to a “pattern or practice” violation – fines of not more than $3,000 for each unauthorized alien with respect to whom such a violation occurs, or imprisonment of up to six months for the entire pattern or practice, or both.

For more egregious criminal conduct, such as was committed by the 7-Eleven franchisee who was sentenced in April 2015 and Michael Bianco, immigration law provides other more serious criminal penalties, including significant jail time, fines, and property forfeitures from the gains of the illegal behavior. An employer facing such charges would need the counsel not only of an immigration lawyer, but of a criminal lawyer as well.

Preparing for an immigration raid or audit

The best strategy for employers is to have their house in order before ICE shows up unexpectedly. The following steps are recommended:

Training. First, employers should be sure that their Human Resources personnel and managers are trained in the employer’s obligations under the IRCA.

Self-audits. Second, employers should conduct periodic self-audits of their I-9s and practices, and review any deficiencies or corrective action with immigration counsel. Particular attention should be given to cases where concerns are raised about the legal status of the employee despite the I-9 documents presented by the employee. Those concerns should be reviewed promptly with counsel once they arise.

Have a procedure in place. Third, employers should prepare themselves by having a procedure to follow if and when ICE agents arrive. The front desk personnel need to be trained about who is to be contacted, and they should know not to provide any other information to ICE. Immigration counsel should be notified immediately, or as soon as possible. The employer’s procedure also should include who is to be the employer’s lead contact with ICE.

A distinction should be drawn between an I-9 audit by ICE (where the employer has an obligation to provide the requested documents) as opposed to an ICE visit with an arrest warrant. If ICE arrives with an arrest warrant, immigration counsel needs to be contacted immediately to advise whether the warrant actually authorizes ICE to enter the facility to make the arrest. A civil arrest warrant (one issued by ICE and not a court) generally does not allow ICE to enter the facility to make an arrest.

Know where your I-9s are maintained. Finally, employers at each facility must know where their I-9 documents are maintained. Although employers have three business days to provide the I-9s, that time can pass quickly if the documents cannot be located or if the I-9s are in an off-site location. The employer also may choose to provide the documents when ICE arrives as a way to provide a positive connection with ICE.