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Government Affairs: What to do if ICE knocks at your door

September 7, 2017 -  By

The U.S. Department of Homeland Security (DHS) issued a new I-9 form on July 17. With raids and inspections by the Immigration and Customs Enforcement (ICE) arm of DHS ramping up, be sure you are using the most current edition of the I-9 form.

Overall enforcement actions by ICE are increasing in line with President Trump’s efforts to crack down on undocumented workers. Employers in the green industry are a high priority target for ICE. Even if you think you haven’t hired any undocumented workers, an ICE raid can disrupt your business.

Things you should do before ICE knocks

  • Be sure you’re using the latest version of the I-9 for new employees.
    • This new I-9 must be completed for all new hires starting Sept. 18.
    • It’s not necessary to complete a new I-9 using this form for existing employees with a prior version I-9 on file.
    • The storage and retention rules for I-9s remain the same.
    • Additional information about completing I-9s is available on the DHS website.
  • Do not keep your I-9 files with your regular employee personnel files. Keep your I-9s in an orderly file with documentation in another office or room where ICE agents can get to them without disrupting the normal flow of work and where they are unlikely to encounter employees or customers.
  • Have a plan if ICE comes to your business and share it with employees. These days, ICE raids are becoming a normal part of business in our industry. Employees should understand this and react calmly and politely if they encounter ICE agents. Employees should not run or abruptly leave the premises if ICE shows up.
  • Share information with your employees about their rights should ICE appear at your business. 
  • Conduct a self-audit of your I-9 files to be sure they are up to date. Better you discover any discrepancies and fix them now, rather than ICE find them later.
    • Inform your employees that you are conducting the audit and explain why.
    • If you are a small business, your self-audit should involve all employees to avoid charges of discrimination. Do this at least annually.
    • If you have a larger business where doing an all employee audit would be too burdensome, put in place a written audit plan that uses a nondiscriminatory way of selecting groups of files to review with the goal to get through all the files in a set period. For example, audit those employees with surnames starting with A-M, then in six months do N-Z. Do not audit only those employee I-9s with surnames you consider to be Hispanic or use any other ethnic or racial criteria.
  • Find an attorney you trust who knows immigration law and who can be at your place of business or give you advice over the phone if ICE shows up.

When ICE knocks

  • There are three ways ICE may initiate an I-9 review:
    1. ICE may issue a notice of inspection (NOI) that compels you to produce specified documents, which may include I-9s, supporting documentation and other business documents, like articles of incorporation. You have three days to produce the requested documents.
    2. ICE may show up at your door asking you to voluntarily submit to an inspection. You may agree or not.
    3. ICE agents may have a search warrant and that warrant will specify what they are seeking. Ask to see the warrant and read it carefully so you provide access only to those items specified on the warrant. This is one reason you want to separate the I-9s from the regular employee personnel files. Also, check the warrant to make sure that the address is correct. ICE may have walked into your business by mistake.
  • Be sure that you have someone in the office at all times trained to respond to an ICE raid. All employees should know who that person is and direct any questions from ICE agents to that person. That person should have a call list ready to notify your attorney and other company management as soon as ICE shows up.
  • Educate employees to calmly go about their business if ICE agents show up.

ICE inspections and raids are, unfortunately, becoming commonplace in our industry. By doing some preparation and having a plan, you can minimize the disruption to your business and the potential for fines.

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Gregg Robertson

About the Author:

Gregg Robertson, Landscape Management's government relations blogger, is a government relations consultant for the Pennsylvania Landscape & Nursery Association (PLNA) and president of Conewago Ventures. From 2002 until May 2013 he served as president of PLNA. Reach him at gregg.robertson@conewagoventures.com.

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