Be Prepared for An ICE Audit
Do you recall the story of Tom Cat Bakery in New York City that lost 21 of their employees thanks to an ICE audit? Many advocacy groups felt the bakery mishandled the audit which got their employees fired. Some of the restaurants in the city stopped using their products. Google Tom Cat Bakery today and you’ll find articles about the protest but little else. Even their website isn’t exactly up to date. The audit hurt them and it’s hard to tell if they recovered from it.
With the Trump Administrations recent Immigration and Customs Enforcement (ICE) raids happening in the United States, it is important for businesses to know what to do to protect their place of employment and their employees should ICE come knocking on their door to conduct an audit. If you have immigrants on your staff, there are steps you can take to ensure the new workplace enforcement policies do not affect you or your workers.
Have all I-9 documents ready for review.
The first thing any business owner needs to do to protect their business from an ICE audit is to keep your I-9 documents ready to be reviewed at any time. Immigration agents will review them to make sure you have followed all of the rules surrounding this form to confirm your employee’s identity and their authorization to work in the United States. I-9 forms must be kept on record for at least three years after the employee has been hired and at least one year after their last day of employment with your business, whichever is later.
Typically, you only need to verify employment authorization once during your employee’s tenure at the company. Keep track of employees that have work permits. They are required to fill out a new I-9 when they renew their permit or if there is another valid, legal reason to re-verify.
You have the right to protect your privacy.
ICE agents can audit your company by reviewing all of your I-9 forms. They cannot search your offices unless they have a warrant signed by a judge and give you warning that a search will take place. To keep an improper search of your business from happening, clearly designate which areas in your business are public and which ones are private. ICE agents can enter the public spaces, such as a break room, without a warrant, but private areas are off limits. Post signs in all private areas and educate your employees so they know who is allowed in those areas.
Educate your staff on their rights.
Private areas of your business are exactly that: private. Your employees have the right to legally deny an ICE agent access to those areas. Instruct your employees on how to interact with the ICE agents. If they are denying the agent access, your employee can tell them, “I cannot give you permission to enter this area. You need to speak with my employer.” Additionally, if an ICE agent attempts to engage an employee in conversation, your employee should not respond by instructing the agent to, “Please speak with my employer.” – They do however have a right to seek legal counsel before making a statement. It’s a good idea to provide all of your employees with a list of organizations, such as the National Immigration Law Center (NILC) in the event they need to obtain high-quality, free or low-cost legal advice due to an ICE audit at your business.
When you educate your employees on how to handle ICE agents and an audit, consider writing down a response plan that reflects what you want to happen during the audit. Provide each employee with a copy and then practice the plan like a fire drill with someone acting at the ICE agent. This will help prepare you and your employees to handle an audit when it happens.
When you come under an ICE audit, notify your employees immediately about what is going on so they have time to prepare. Your employees need as much time as possible to determine if they need to speak to their attorneys, especially with immigration laws becoming so complicated. It also allows them the opportunity to remember what you covered in your practice drills in the event they come face to face with the ICE agent.
Prepare to offer a fair severance to your undocumented worker.
For one reason or another, you may be required to let an employee go after the ICE audit, especially if they are deemed an undocumented worker. Pay them their owed wages and an any accrued benefits as soon as possible. Speak with the employee and negotiate a fair severance package with them so that they can support themselves and their families for at least a short period of time after employment ends. Offer them the chance to reclaim their position within a set period of time at the same pay and seniority once they are able to demonstrate their legal status. Be compassionate to their situation.
Why should an employer consider hiring an experienced immigration attorney?
More and more employers are facing the possibility that they have undocumented workers on their staff. An experienced immigration attorney can help businesses navigate the complicated terrain of immigration law and employment-based U.S. immigrant visas to protect their company and workers. The team at Fong Ilagan can not only help employers get through an ICE audit, but also assist employees needing visa management assistance.
For expert help in reaching your business or family immigration goals, contact the attorneys at Fong Ilagan today, Call: 713.772.2300 or fill out our contact form. The legal team at Fong Ilagan looks forward to assisting you.