Over the last few weeks, federal immigration enforcement has increased across the nation. From an Employment Law perspective, this raises several key considerations for employers.
In her latest Employment News article, KingSpry’s Employment Law Chair, Avery E. Smith, Esq. offers recommendations to employers as it pertains to remaining compliant and prepared should Immigration and Customs Enforcement (ICE) inspect or raid their workplace.
Federal Government
The United States Department of Homeland Security (DHS) is a federal executive department responsible for public security across the nation. DHS is responsible for enforcing several federal laws pertaining to immigration, detention, and terrorism, among other responsibilities.
Within DHS is the United States Immigration and Customs Enforcement (ICE), which is responsible for enforcing the federal laws that govern the nation’s borders, customs, trade, and immigration.
DHS Directive
On January 21, 2025, DHS Acting Secretary, Benjamine Huffman, issued a directive that rescinds the Biden-Harris Administration’s guidelines pertaining to ICE enforcement actions. The now rescinded guidelines established a non-exhaustive list of protected areas, such as schools, and provided that “enforcement actions should not be taken in or near a location that would restrain people’s access to essential services or engagement in essential activities.”
This directive allows immigration authorities, i.e., ICE, to enter previously protected areas, which includes schools, healthcare facilities, and places of worship, to conduct arrests.
Recommended Employment Practices
While ICE’s presence in the workplace may be disruptive and/or uncomfortable, there are measures that employers can take to prepare their workplace for ICE visits.
Form I-9. Form I-9 is used to verify the identity and employment authorization of individuals hired for employment in the United States. Employers must ensure proper completion and retention of Form I-9 for all individuals hired. Form I-9 should be retained for all employees for three years (3) after their date of hire or for one (1) year after their employment is terminated, whichever is longer. Periodically reviewing your Form I-9 records to identify and/or correct potential errors is also a recommended practice to ensure compliance.
Notice of Inspection. The inspection process of Form I-9 is initiated when an employer is served with a Notice of Inspection (NOI). Once received, employers have three (3) business days to produce the Form I-9s requested on the NOI. This is why proper and organized retention is key!
Review Policies. Employers are encouraged to develop and/or review their policies to ensure that all pre-employment practices comply with relevant laws. In addition to Form I-9 considerations, employers should consider their policies related to government, i.e., ICE, visits. Does your business have a response team? How should your staff respond to an ICE visit? These are questions to consider with management and your legal counsel.
Employee Training. Not only is having policies in place integral to safety and compliance, but it is also recommended that employers train their staff on what to do when government officials or ICE agents visit the workplace.
Handling ICE Visits
In the event that ICE visits your workplace, employers should consider the following to be prepared and remain compliant before, during, and after the visit:
Prior to ICE’s Visit. Prior to ICE’s visit, employers should take proactive measures. This includes, but is not limited to, (1) following all Form I-9 requirements, (2) educating and training employees, and (3) anticipating workplace disruptions before they occur.
During ICE’s Visit. Ideally, if ICE visits your workplace, all employees should be well-informed as to what your business’s protocol is. This may include requiring a warrant for entry or contacting the appropriate supervisor to speak with ICE. Overall, employees should remain calm and professional.
After ICE’s Visit. Following an ICE visit, employers should ensure that all interactions are well-documented. This includes documenting the names and badge numbers of ICE agents and what action occurred. Employers are also encouraged to contact their legal counsel immediately to determine if further action is required.
Key Takeaways
From an Employment Law perspective, the bottom line is compliance. By staying up to date on the latest directives and immigration enforcement actions, employers can better prepare themselves, their employees, and their business for potential ICE visits or raids. Ensuring compliance now mitigates future risks and liabilities.
To ensure your policies and procedures remain compliant with relevant laws and meet your business’s unique needs, employers are encouraged to consult with their legal counsel or KingSpry’s Employment Law team.
The Employment Law attorneys at KingSpry are a trusted resource for providing employment law advice, counsel, and representation. If your company has questions, KingSpry is prepared to assist you. This article is a publication of KingSpry and does not constitute legal advice.
