Last week, one of my larger restaurant clients received an unannounced visit from two plain-clothed agents identifying themselves as working with ICE.  They had proper identification and business cards.  They were unarmed.  They attempted to demand that the restaurant turn over all the I-9s IMMEDIATELY. 

But that is NOT the law. 

Pursuant to federal law, employers have 72 hours upon receiving a Notice of Inspection (NOI) to produce the required reports and related immigration documents, including the I-9s.  Thankfully, here, management was well trained and immediately advised Human Resources, who reminded the agents of the law, and ICE agreed to return for the documents.    

This 72-hour window is crucial, because California law requires that all California employers post a Notice to Employee under Labor Code Section 90.2, providing all current employees 72 hours’ notice of the documentation being sought in the NOI.   You can find that form online with the California Department of Industrial Relations. 

At this point, we are unsure if this visit reflects a change in tactics, but this is the first I have heard of ICE conducting I-9 audits under this recent immigration enforcement surge.  As we all remember, I-9 audits played a major role in the immigration enforcement efforts under Trump 1.0.   We also do not know what comes next.  For example,  they may try to use this audit and the recovered documents as an excuse for another more aggressive visit.

Fortunately, they targeted  an extremely well trained and prepared employer.  Their management was trained for this visit and their documents are compliant.   They were ready for this.   

Are you?   Would your staff know what to do if ICE agents came to the front door?  Are you confident that all your I-9 documents can withstand scrutiny?  If there are holes in those documents, ICE could use that as good cause to seek that judicial warrant they would need to revisit your premises, enter even the designated private areas, and wreak havoc.  Do not give them that opening.

TRAIN YOUR STAFF AND AUDIT YOUR I-9s – NOW.  I cannot state this with enough urgency.