Considerations for Employers to Prepare for Immigration “ICE Storms”

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With the new administration now in place, the prediction is for "ICE storms" – U.S. Immigration and Customs Enforcement (ICE) storms, to be more specific. Two types of ICE enforcement actions are likely brewing: worksite raids and Form I-9 audits.

The best way to deal with any ICE enforcement action is to be prepared. This includes understanding whether you might be part of an industry more likely to be hit by an ICE storm than others, such as hospitality, health care and critical infrastructure, which are commonly subject to ICE enforcement actions. In addition, it is believed that food processing, agriculture, construction and manufacturing are likely to be especially targeted under the new administration.

Regardless of your industry, all employers should take steps to prepare for the possibility of both types of ICE enforcement actions by:

1.) Establishing, adopting, consistently following and uniformly enforcing best practices regarding:

  • Recruiting, hiring and retaining only employment of authorized individuals;
  • Completion, retention, administration, updating, review and, when necessary, correction of Form I-9s;
  • Responding to payroll administrator, benefits provider, tax authority, federal agency or state agency notifications of an alleged misuse, misappropriation or “no-match” of a Social Security number presented by an employee;
  • Addressing "tips" and allegations from both internal and external sources regarding the immigration status of employees;
  • Processes for termination or demotion of employees (as many ICE actions are triggered by disgruntled current or ex-employees);
  • Preventing discrimination based on real or perceived citizenship status, national origin, ethnicity or other potentially protected class or group membership;
  • Tracking and timely reminding employees of the expiration of their employment authorizing documents or status;
  • Identifying and responding to documents presented by employees at hire which are suspected of being fraudulent;
  • Ensuring fair and humane working conditions for all employees;
  • Documenting efforts of affirmative, good-faith compliance with employment eligibility requirements, permanent residency and nonimmigrant visa sponsorship rules, and any corrective actions taken to address any detected violations of any federal, state or local employment or immigration-related laws or regulations; and
  • Training executives, managers, and all hiring personnel regarding all the above.

2.) Completing a Form I-9 compliance review with legal counsel at least on an annual basis.

3.) Requiring from any contractor or staffing company who places their employees at your place of employment, a written assurance that they only recruit, hire, and retain workers authorized to work in United States; that they properly and independently complete, retain and maintain Form I-9s for all of their employees; and that they will indemnify your entity should your entity be investigated, fined or otherwise sanctioned or penalized by the government for any individuals they send to your place of employment.

4.) Proactively exploring, with the assistance of counsel, enrollment in E-Verify.

5.) Preparing employees, officers, and managers regarding their legal rights and responsibilities when dealing with law enforcement and investigation officers.

6.) Developing a worksite raid plan:

  • Designate certain officers or employees to be the only individual(s) authorized to speak with ICE on behalf of your entity;
  • Train officers and employees regarding how to detect if and when ICE arrives and how to respond;
  • Clearly designate which areas of your workplace are public and private;
  • Have designated contacts (legal, management, Human Resources, records, etc.) and means of reaching those designated contacts (multiple channels);
  • Establish a policy of how, when and where documents may be turned over to ICE;
  • Know where and how important documents are retained and organized;
  • Have a protocol for notifying employee family members or other emergency contacts;
  • Ensure there are means of communication between sites if your entity has multiple workplace sites;
  • Have a plan for how interaction with and documentation from ICE will be gathered, kept and transmitted;
  • Have a plan for dealing with the media and customers after an ICE visit;
  • Have a plan to address staff shortages caused by a worksite action; and
  • Train executives, managers, supervisors, and other key personnel about whether and how they may communicate with any employee taken into ICE custody.

These proactive steps will help to equip any employer to most effectively prepare for potential upcoming ICE enforcement. If you have questions or would like assistance in preparing your entity’s readiness, please contact Shareholder Benjamin T. Kurten or your Reinhart attorney.

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