Understanding ICE at the Workplace

A webinar titled “Preparing for an ICE Visit” was held online on June 20 to provide employers with insights into navigating U.S. Immigration and Customs Enforcement (ICE) workplace visits. The session, which began at 11 a.m. and lasted approximately one hour, provided information on employers’ rights, responsibilities and proactive measures to ensure compliance with immigration laws. Speakers Audrianne Adams Lee, Shannon Jenkins and Richard Wilner led the webinar. Attendees received a copy of the presentation file and a document further explaining the contents discussed.

Audrianne Adams Lee, President and Founder of HR NETwork, Inc., brought over three decades of human resources experience from Fortune 500 companies, specializing in HR leadership and management training. Shannon Jenkins, a partner at TLD Law, is an employment defense attorney who advises employers on business litigation and employment disputes, including proactive compliance services like training and auditing.

The guest speaker, Richard Wilner, a founding partner of Wilner & O’Reilly, is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. With experience dating back to 1999, he advises businesses and individuals on U.S. Immigration and Nationality Law, and his firm represents both employers and employees.

The webinar’s agenda covered understanding ICE notices and warrants, distinguishing public from private areas in a business, potential penalties for non-compliance, preparedness strategies, and actions to take during and after an ICE visit.

Understanding ICE Notices and Warrants

The session began by clarifying the different encounters employers might have with ICE. These include a Notice of Inspection (NOI) for I-9 audits, an administrative subpoena for employee information (often related to visa applications or non-citizen spouses), an administrative arrest warrant for individuals (which does not permit property searches), and a judicial search warrant (which grants the right to search property for records or specific employees).

Richard Wilner noted that ICE visits for individual apprehension are less common at workplaces than at residences. He explained that administrative warrants are generally “pointless” regarding compelling entry or information, and employers can politely turn agents away if they only present such a warrant. “The agents with administrative warrants know that,” Wilner stated, adding that “that piece of paper is meaningless, under no obligation to answer questions, you’re under no obligation to allow them to search.” A judicial search warrant, however, is a more serious matter, as it requires a federal judge to determine probable cause, making it “almost unheard of” for solely employee document-related searches and more in the realm of seeking to detain an individual.

A key distinction highlighted was access rights to different parts of a business. Anyone, including ICE agents, can enter public areas, such as dining areas, parking lots, lobbies, or waiting areas, without permission. However, private areas, like offices or restricted work zones, require a judicial warrant or the employer’s permission for ICE agents to enter. Employers were advised to mark private areas with signs, keep doors closed or locked, and have policies restricting public access to delineate them.

I-9 Compliance and Potential Penalties

Most of the webinar focused on Form I-9, the Employment Eligibility Verification document mandatory for all new hires. Employers must ensure employees complete Section 1 on or before their first day, and an authorized company representative completes Section 2 within three business days. Employees must present original, unexpired, acceptable documents within three days of their start date.

The speakers stressed the importance of proper I-9 completion and retention, as violations can lead to substantial penalties. Penalties for knowingly hiring or continuing to employ unauthorized workers range from $250 to $5,500 per worker, with escalating fines for repeat offenses, potentially reaching up to $27,894 per violation for a third or more offense. A pattern or practice of hiring unauthorized workers can result in criminal charges, including imprisonment of up to 10 years and fines of up to $250,000 for “harboring” undocumented workers.

Paperwork violations, such as failing to complete, retain, or make Form I-9 available, can incur fines from $281 to $2,789 per violation. False statements or document fraud can lead to fines and up to five years imprisonment. Employers were also warned against unfair immigration-related employment practices, including discrimination based on national origin or citizenship status and document abuse (requesting more or different documents than required). Employers violating immigration laws may also be barred from federal government contracts.

California employers are additionally required to notify employees of any I-9 inspection by posting a notice within 72 hours of receiving notification of the inspection. Richard Wilner observed that such notice “will have an exodus of those employees who are not allowed to work.” However, the speakers highlighted that an employee’s immigration status is irrelevant to wage and other obligations under state or federal employment law.

Furthermore, employers cannot discriminate against individuals or retaliate against them for exercising their labor rights, including immigration status, and must not coerce or influence employees regarding political actions. Shannon Jenkins also cautioned that mass employee walkouts in response to ICE activity could be protected as a concerted activity under federal labor law.

Preparation and Response During an ICE Visit

A critical takeaway was the necessity of a detailed preparedness plan. This includes conducting internal I-9 audits, designating a compliance team, partnering with immigration legal experts, outlining clear steps for cooperation with ICE, and training relevant staff. Audrianne Adams Lee also advised that I-9 forms should be stored separately from personnel files to protect employee privacy and simplify access for audit purposes.

During an actual ICE visit, immediate actions recommended include alerting legal counsel and management, staying calm and professional, verifying agents’ identities and reasons for the visit, and documenting everything (names of agents, observations, photos/videos, if possible). If ICE serves a Notice of Inspection, employers have three days to produce I-9 forms and should not provide documents immediately. The designated HR representative should lead interactions with the agent, always involving legal counsel.

For enforcement actions like subpoenas or warrants, employers should request and review them, remembering that agents cannot enter private areas without a judicial warrant. Agents should be escorted to a private area away from employees and the public, and documents should not be provided unless legally required by a judicial subpoena.

Employees have the right to remain silent and request legal representation. Training employees to politely direct agents to management is essential. “I do not have the authority to provide you entry or respond to your questions. I will direct you to my employer/manager,” is a recommended phrase for employees.

After an ICE visit, employers may need to separate unauthorized employees but must ensure all owed wages and benefits are paid in compliance with federal and state labor laws. Employers might also consider contributing to an immigration legal fund to assist affected workers facing deportation. Providing references for future jobs can also support deported workers.

For any inquiries or further information, please contact Jose Cervantes at JoseC.Press@pm.me