While current events have been far more explosive than anticipated, these raids should not be a surprise.    I wrote two articles on this topic months ago because the ICE raids and increased deportation activity have been a publicized part of this administration’s agenda well before the election.  I reported on this topic back in February when information was “leaked” about targeted efforts in Los Angeles.  In light of all this intel, hopefully, some of you took my advice back then, educated yourselves and your workforce, and made a plan. 

There is much information on social media right now about the rights of individuals and how they should react in case they are approached by ICE on the streets or in their homes.  But I want to focus on YOUR rights and obligations as employers, and what you and your team should do NOW and in the case of an ICE raid.

Audit Your I-9 Compliance NOW

In the past, ICE would often visit purely to conduct an I-9 audit.  An I-9 audit is when an enforcement agency comes to your business to check if you followed the rules for obtaining and retaining  I-9 Forms.   That does not appear to be the current priority.   Most likely, they are coming to make arrests and detain individuals.  HOWEVER, they have been seizing employer records along the way.   So NOW is the time to double down on your compliance. 

You should be doing internal audits to determine if you have a completed I-9 on every employee and if that form is completed properly (all the correct boxes checked, all the appropriate signatures present).   You should also make sure that every employee who is reviewing compliant documents knows what documents satisfy which columns, and how to spot documents that do not appear on their face to be valid.   The government has put together a helpful course on this for your employees to review.   Here is a link:

https://www.uscis.gov/i-9-central/form-i-9-resources/employment-eligibility-webinars

Do not ask a worker to fill out Form I-9 more than once unless their work permit is about to expire or you have another valid, legal reason.   Asking for too many documents or targeting certain employees for extra paperwork for can constitute “document abuse,” and is its own legal violation under the Immigration Act. 

You must keep I-9 forms on file for 3 years after hiring or 1 year after the worker’s last day of work, whichever is later.  You do not have to keep copies of a worker’s ID or work authorization documents, but if you do, make sure you are doing it consistently for all employees.   

Every single one of you should be conducting I-9 audits NOW.  This is the easiest thing for you to do to protect your businesses.  If you need help in conducting these audits, reach out. 

What To Do in The Event of An ICE Raid

I am going to refresh the information I provided back in February, but with a caveat given the most recent ICE tactics.

To start, there are rules that ICE and other enforcement agents are supposed to follow in the event of a visit or raid.  Those rules are dictated by our Constitution.  However, I can not confirm that ICE has been following those rules recently.  Nevertheless, let’s revisit how this is supposed to work, and then what we should do if everything goes sideways.

First, ICE is legally required to follow procedures and ensure they have the proper paperwork and authority to enter the premises and conduct a search or an audit.  California employers CAN NOT give permission or voluntarily consent to access without an appropriate warrant or subpoena.  You should say “I cannot consent, and I do not consent.”  Be vigilant and ensure the agents do not exceed their authorization.

The following is a list of the documents they are most likely to have in their possession.

• Notice of Inspection – this is an ICE/HSI request to present I-9 forms within 3 business days. Contact an attorney before responding.
• Immigration Enforcement Subpoena – this usually includes a request for other documents along with the I-9s.
• Judicial Warrant – this warrant is signed by the judge of a court. It may allow ICE agents to enter private areas or seize documents onsite. Read the warrant. ICE is limited to the scope of the warrant. Do not give consent beyond the scope.
• Administrative Warrant – this usually has “Department of Homeland Security” at the top of the first page and is on Form I-200 or I-205, issued as part of an I-9 audit. If ICE shows you an Administrative Warrant with a specific employee’s name on it:
           -You do NOT have to say if that employee is working on that day.
           -You do NOT have to take the ICE agents to the employee named on the warrant.

• Inventory Receipt. If records are seized, ICE must give the company a receipt to inventory what they are taking.

That is how this is supposed to work.  But given recent events, I cannot confirm that any of the above has been going to plan.  Nevertheless, we should be training our managers and workforce to know their rights and how to react.  Let’s call that Plan A.

Prepare and Train Key People for Plan A – Employers should designate an employee, preferably, a manager/executive to be responsible for interacting with enforcement agents. These designated people will do two important things: determine if the agents have the right kind of warrant and deny the agents entry if they don’t.  These designated people must be trained NOT to consent to a workplace search unless provided with a valid judicial search warrant.

Ideally, the designated employees/employee will be the one responsible for:

• Immediately alerting legal counsel.
• Inspecting the documentation to ensure the warrant/Notice of Inspection is valid.  
• Tracking the names and badge numbers of the agents or officers.  Remember that local police and sheriffs can also accompany and act alongside ICE agents.  You have the right to demand names and badge names for all officers.  Take video or pictures if possible.  This is when taking video IS legal!
• Accompanying the agents at all times.  At no time should agents be able to wander and speak to employees without you present.
• Ensuring that the agents do not go beyond the scope of their authority and that the constitutional rights of the employees are protected.

Preparing For Plan B – As I said, I drafted the above advice assuming that these raids would follow a similar script as in previous years.   That may well not be the case now.   What do you do, and what do you tell your employees to do, in the case of an assault-style raid? 

First, still prepare to follow all of the above protocol.  Insist on seeing the proper documentation.  Have at least one person delegated to record the process and the actions of the enforcement officers.   But beyond that, if ICE  comes barging into your business with 30 armed officers, your managers should not physically engage.    

If ICE enters your premises, either with proper documentation or without, your managers and staff should be trained as follows:

• Stay calm and do not run: Fleeing can be seen as suspicious.   ICE agents are allowed to engage in “hot pursuit” and to arrest people suspected of violating immigration laws.  Do not give them good cause to act.
• Exercise your right to remain silent: Your employees are not obligated to answer questions about their immigration status or personal details, nor should they.
• Ask for a lawyer: They should insist on speaking to an attorney before answering any questions or signing documents.
• Do not provide false information: Lying to authorities can have serious consequences.  Any information employees provide to ICE can be used against them.
• Document details: If possible, note the names of officers, their badge numbers, and the time of the raid.  And RECORD EVERYTHING.
• Know your rights: Employees should know that even if they are undocumented, they still have basic rights during an immigration check.

Steps To Take After ICE Leaves – Make note of the following:
• How many ICE agents were present (inside or outside)? What were their names?  Did we take video or photos?
• How were the agents dressed? How were they armed?
• Did the agents make you or your employees believe you could not move or leave?
• Did the agents threaten or mistreat anyone? If yes, how?

• If ICE arrests anyone, ask the ICE agents where they are being taken.
• If there is an I-9 inspection, prepare the documents. You can request more than 3 days to produce the records.
• Labor Code Sec 90.2 requires California employers to post a Notice to Employees of I-9 and other immigration records inspections.

Most importantly if ANY of the above occurs – reach out.   Call, text, email, or all of the above.  We have been preparing for this threat, and we are here to help.   I also have a team of immigration lawyers on stand-by.  You are not in this alone.

Managing Your Workforce in the Interim – From all accounts, Los Angeles is targeted for increased ICE activity for at least the next 30 days.  But I have already heard reports of activity in surrounding areas, and we already know they hit San Diego hard the week before.   These raids sparked protests, and the administration responded.  Governor Newsom has filed a lawsuit against the Trump administration for unlawfully engaging the National Guard, and the gloves have come off.

Both the threat of the impending raids and increased protests have impacted employers and their workforce over the weekend, and it looks like all this will continue for some time.    Employees are understandably nervous.   

What can you do in the meantime?

First, encourage your employees to keep coming to work.   Reassure your staff that being in the workplace is still the safest place they can be.   Absent a warrant, ICE officials should not be entering your premises.  And if they do, we have a response plan in place.

Second, we have the issue of employees missing work due to the protests or simply because they are frightened.   Legally, you do not have to  “accommodate” a protest-related absence.   But realistically, you may choose to do so.  Transparency will be key through these times.   Encourage your employees to provide you notice if they plan to miss a day.   Work with your employees.   Manage the schedules.  

We know that most of our migrant workforce values their jobs, just as most employers value this workforce.   Increase your communication.   It is more important now than ever.  

Let’s also pledge to keep in touch about ICE activity and the tactics they are using.   If you learn of an incident, please reach out.  I will use this platform as a forum to disseminate accurate information as I receive and confirm it.   There will be a lot of misinformation circulated.  Reach out of if you hear anything and have questions.

MOST importantly, stay safe.  If you are choosing to engage in protests, do so peacefully and encourage everyone you know to do the same.   There are some actors here looking to cause chaos.  Don’t give them that win.