HOW DO YOU RESPOND WHEN
IMMIGRATION AND CUSTOMS ENFORCMENT (ICE) SHOWS UP AT YOUR
FARM, RANCH OR BUSINESS?
July 17, 2008
By Monte B. Lake (1)
During the past several years, the Department of Homeland
Security's (DHS) agency charged with enforcement of employer immigration
compliance, ICE, has expanded significantly its worksite activities. In
the last fiscal year, ICE dramatically increased the amount of fines and
civil judgments in worksite investigations, obtaining over $30 million.
In fiscal year 2007, ICE made nearly 5,000 combined criminal and administrative
worksite enforcement arrests. The combined fiscal year 2007 and 2006 worksite
arrests averaged nearly 6 times higher than the average during the preceding
ICE representatives publicly stated this spring
that they would be targeting this year the meat processing industry, along
with the production agriculture, hospitality and construction industries.
To date, their statements have been proven correct. Agriculture has been
a favorite target of recent high profile raids, including the apprehension
of nearly 1300 illegal workers during the multi-facility raids of Swift
& Company meat packing plants in December 2006, highly publicized
arrests of over 300 employees at Pilgrim's Pride poultry processing plants
in several states in April 2008 and nearly 400 arrests at the Agriprocessors
meat packing plant in Iowa in May 2008.
In addition to worksite activities, the Bush Administration
has been pursuing greater employer accountability during the past year
with regard to the hiring of undocumented workers. In August 2007, DHS
issued final regulations implementing its "no-match" policy that would
require employers to terminate within 90 days of the receipt of such letters,
employees who could not provide proof of work authorization independent
of the documents that were identified as not matching government records.
While the effective date of the implementation of the rule has been delayed,
at least temporarily, by a court injunction, it could be upheld later
In addition, the President issued an Executive Order
and proposed implementing regulations in June 2008 that would require
all prime government contractors and some subcontractors to use DHS' E-Verify
electronic employment authorization verification system for all new hires
and all existing workers employed on the federal government contract.
If both the pending "no-match" rule and proposed procurement rule are
implemented, DHS will have achieved significant indirect worksite enforcement
complementing its actual worksite enforcement that will greatly impact
NCAE members, if not accompanied by enactment of the AgJOBS legislation
NCAE has received a number of reports from its members
that ICE has been active auditing and visiting agricultural worksites.
In view of all of these activities, NCAE members are asking for advice
as to how employers can prepare for possible visits by ICE and what they
should do if they are visited. To respond to these concerns, NCAE asked
its Washington, D.C. legal counsel to update a summary of the practical
and legal issues that agricultural employers should consider if they receive
a visit from ICE or another government agency regarding their compliance
with immigration laws. (2) As a result,
NCAE has provided this updated document that was prepared several years
This memorandum first examines some of the more general
and practical issues that agricultural employers should consider if they
are visited by ICE or DOL representatives with regard to compliance with
federal immigration laws. After providing some practical tips, the memorandum
provides guidance regarding the two most common circumstances wherein
an employer will encounter ICE. The first involves a routine employment
eligibility verification (I9 Form) audit. The second involves more serious
and possible criminal investigations where a search warrant may have been
PRACTICAL CONSIDERATIONS FOR AGRICULTURAL
EMPLOYERS PRIOR TO AN AUDIT OR SEARCH AND SEIZURE BY ICE
An ICE inspection is not unlike an inspection by
your doctor or auto mechanic. If you haven't practiced preventative maintenance
by the time you have your visit, it is probably too late to avoid the
bad news. Unlike the case of a vehicle that runs poorly or a body that
does not feel well, where one can control the timing of his/her visit
to the mechanic or doctor, one seldom can anticipate when the local ICE
representative is going to show up at your office or on your property.
Following are some preventative steps that can be taken and should be
considered before you receive the unexpected visit by ICE.
• Review your current employment practices
and procedures. Do they comply with the law?
Periodically interview your staff to make sure that they are correctly
carrying out your I-9 Form and employment eligibility verification policies
• Review your record keeping policies
and practices. Make sure that you are keeping the proper records for the
proper periods of time as required by law.
Complete and correctly filled out records are an
employer's best defense. By the same token, incomplete and/or improperly
completed forms (i.e., I-9 Form) can ensure liability.
Periodically perform a spot check on I-9 Forms and other employment
documents to make sure they are being properly and consistently completed
by responsible personnel.
Designate a management representative
who is authorized to meet and talk to ICE or DOL personnel when they visit
Educate the designated representative about appropriate
procedures, including when to call the owner and/or the company's attorney
or labor consultant or association.
Make sure other employees and supervisors know to
refer inquiries from ICE or DOL representatives to the designated company
No employee or supervisor should submit to an interview
with ICE or DOL or provide requested documents without conferring with
the designated company representative.
The designated company representative
should always be polite and assume an attitude of cooperation with ICE
and DOL. If the ICE or DOL inspector does not offer identification, it
should be asked for.
A decision should be made regarding
how much to cooperate.
ICE personnel are often flexible in arranging routine
I -9 Form audits and the company should likewise try to be flexible.
If a criminal or other than routine audit is suspected,
you may wish to seek the advice of counsel before cooperating with regard
to document and interview requests. A judgment may be made at this time
as to whether a search warrant or subpoena is required, if one has not
already been presented by ICE.
To the extent possible, the breadth of information
sought should be narrowed and, if records are sought, the company may
consider offering to deliver them, after making copies of what is to be
The designated company representative
should keep records of all information sought by ICE or DOL and the questions
ICE asks and answers the company representative gives. To the extent possible,
copies of all documents given to ICE should be made and retained and an
inventory list kept.
WHAT SHOULD AN EMPLOYER DO WHEN ICE ASKS
TO AUDIT ITS I-9 FORMS? (3)
Typically, a representative of ICE will contact an
employer by telephone or letter and request to visit the employer's worksite
to review its employment records to determine whether the employer is
complying with federal immigration laws. Occasionally, an ICE representative
will show up at the employer's office without prior notice. What do you
do when you get the phone call, letter or onsite visit? Summarized below
is a brief review of an employer's obligations related to the employment
eligibility verification process using the I-9 Form, as well as an employer's
rights once ICE announces it wants to audit that process.
What are an employer's legal obligations
that relate to I-9 Forms and employment eligibility verification?
must complete an I-9 Form for every new hire and former employee rehired
more than three years after the previous date of hire.
Employers must reverify employees rehired within three years of the previous
Employers must retain each I-9 Form for three years after the date of
hire, or one year after an employee terminates his/her employment,
which ever is later.
Employers must provide their I-9 Forms to the ICE for inspection, upon
three business day's notice, without demanding a subpoena or search warrant.
Employers must use the revised I-9 Form issued on December 27, 2007 for
What are your legal rights in an ICE or DOL
employment eligibility verification audit?
Must you be given notice prior to an audit?
Under the law, an employer must be given three days
notice by the ICE office before the ICE may inspect its I-9 forms. The
inspection can take place at the employer's office or at the ICE office.
ICE generally gives employers three days notice. As a practical matter,
a mutually convenient time can usually be arranged between the ICE and
the employer. If, however, an ICE representative shows up at your office
and requests to see your I-9 Forms without any prior notice and it is
not convenient for you to produce the I-9 Forms that day, you may demand
to be given three days notice to prepare for the audit.
Must ICE have a subpoena or search warrant before it can examine your
I-9 Forms and related document?
ICE does not need a subpoena or search warrant in
order to see your I-9 Forms pursuant to a routine audit. It simply must
request to see them and give you at least three days notice.
you limit the documents that you provide to the ICE?
ICE may only request to see I-9 Forms and a list
of current and past employees and their Social Security numbers. Without
a subpoena, ICE may not request personnel files that contain information
beyond that which it needs to determine whether I-9 Forms exist for all
current and former employees for whom the employer has an I-9 Form recordkeeping
obligation. If an employer copies documents provided by employees to establish
employment eligibility and identity for purposes of completing the I-9
Form, ICE is entitled to examine and obtain copies of both the I-9 Form
and the attached copies of the documents.
An employer is entitled to retain copies of all documents
that it provides to ICE. One of the benefits afforded to employers by
the three-day notice requirement is that they have the time to copy requested
documents. We strongly recommend that employers make copies of documents
that they provide to the ICE, especially if ICE takes I-9 Forms and related
records off the premises. An inventory of all documents taken by the ICE
should be maintained.
It should be noted that DOL investigators also have
the authority to review I-9 Forms. They will normally do so during the
course of a wage and hour or other laborrelated investigation. With respect
to auditing an employer's I-9 forms, DOL is governed by the rules described
above that relate to the ICE; however, you should be aware that DOL is
not required to give three days notice for its audit of payroll and other
records for which it has separate authority to examine without three days
notice. Thus, an employer can demand that DOL afford it three days notice
for I-9 inspections, even though it cannot do so regarding other personnel
records subject to DOL's jurisdiction.
What should you do if you discover errors on I-9 Forms or missing forms
after you receive notice of an I-9 Form audit?
Employers often discover in preparation for an I-9
Form audit that some of their 1-9 Forms are not completely filled out,
or in some cases, that I-9 Forms have not been completed for some employees.
They then confront the question of what, if any, steps they can take to
correct the mistakes or omissions they discover. First, it should be made
clear that if an I-9 Form has not been completed, one should be completed
right away if the worker is still an employee. The I-9 Form should be
signed and dated on the date that it was actually completed--not the date
the worker actually began working. The correct date that the worker began
work should be noted on the I-9 Form. The signature line for the employer
or its representative on the I-9 Form should not be back dated. While
this later completion of the I- 9 Form may not present a defense to the
failure to complete the form at the time of hire, it puts the employer
in a better light by showing that it immediately corrected its mistake
once it was discovered. Of course, if the employee for whom an I-9 form
is missing is no longer on the payroll, there is nothing the employer
can do to fix the situation.
It is more difficult to answer the question about
correcting minor mistakes on the I-9 Form. A common situation is for an
employee completing Section 1 of the I-9 Form at the time of hire to write
his/her Social Security number in Section 1 where requested and also offer
the Social Security card as a List B document in Section 2 to establish
employment eligibility. The employer checks the Social Security card box
in Section 2 but fails to write in the Social Security card number in
section 2. This is a technical mistake. Can an employer later fill in
the Social Security card number in Section 2, since the number was listed
in Section 1 already by the employee? An argument can be made that such
a practice is acceptable since no new facts are added to the I-9 Form.
The safest approach would be not to add new information to the I-9 form
that was not on it at the time it was originally completed or add the
information but put the date it was added on the form.
The 1996 amendments to the immigration law provide
that employers will be given 10 business days after notification by ICE
to correct technical I-9 Form compliance problems.
(5) The above example is one that probably could be corrected
prior to the ICE audit.
WHAT SHOULD AN EMPLOYER DO WHEN ICE COMES
ONTO ITS PROPERTY DEMANDS TO CHECK WORK AUTHORIZATION DOCUMENTS OF ITS
WORKERS AND TO SEIZE PERSONNEL RECORDS AND OTHER DOCUMENTS FROM THE EMPLOYER'S
The above-described circumstances wherein ICE DOL
investigators request to review an employer's eligibility verification
procedures and related I-9 Forms are increasingly common in agricultural
and other worksites. Uncommon in the past, but increasingly common, are
ICE investigations based on information in its possession suggesting that
an employer or the agent of an employer may be involved in the knowing
hiring of illegal aliens and/or the smuggling and harboring of illegal
aliens. (6) This type of situation poses
more serious considerations for an employer. Two typical situations occur.
ICE may come into your open fields and start interviewing your workers
and asking them for work authorization documents. ICE also may come into
your office and demand to take your personnel records, computer data and
other documents. Following is a summary of some of the legal and practical
issues that should be considered by an employer if these circumstances
What are an agricultural employer's legal
rights when ICE enters its property and demands to question its employees
regarding whether they are legally authorized to work?
The Immigration Reform and Control Act of 1986 (IRCA)
requires officers and employees of the DHS to possess a search warrant
to enter open agricultural property without the owner's consent ICE to
question agricultural workers as to their identity and national origin
or their right to be in or remain in the United States.
(7) The search warrant provision is not intended to have broad
application. It applies only to searches by ICE officers and employees.
The areas protected from ICE warrantless entry are the premises of the
farm or other outdoor agricultural operations.
A search warrant is not required under the following
If consent is given to enter the property
by an owner or his agent;
If the property is not being used
for agricultural purposes;
If the ICE is in "hot pursuit" of
an illegal alien who has violated some other
provision of the immigration laws; or
The property is within 25 miles of
the United States border.
What are an employer's legal rights when
ICE demands to search its office or other buildings for the purpose of
obtaining documents, computer data, and other evidence related to the
employment of illegal aliens?
ICE, just like other law enforcement agencies, is
required to obtain a search warrant before it can come into an agricultural
employer's business office or other buildings for the purpose of confiscating
personnel files, computers, computer discs and generated data, employment
policies and procedures and other documents it believes may provide evidence
that an employer is involved in the hiring, smuggling or harboring of
illegal aliens. In order to obtain a search warrant, ICE must go before
a federal judge or magistrate and show it has probable cause to believe
that the employer may be engaged in such illegal activities. Typically,
such probable cause can be shown through the statements of employees or
farm labor contractors who have given statements to DHS about the employer's
employment practices after they have been apprehended and interrogated
by the agency.
If ICE comes upon your property for the purpose of
searching and seizing your records and documents and/or to interrogate
workers in the field or in a packing or processing facility, it must provide
the owner of the property or his/her supervisor or agent, a copy of the
search warrant authorizing such activities. This is distinct from the
routine audit of I-9 Forms discussed above, for which ICE does not need
a search warrant or subpoena but must give three business days notice.
In addition, DHS can serve an employer with a subpoena and request that
it produce documents that may show whether it is employing illegal aliens.
While there is always a practical judgment to be
made, if ICE does not present an employer with a search warrant prior
to checking the work authorization documents of its employees or in searching
and seizing records and computer materials from its office, the employer
has the right to ask ICE to cease its activities and leave its property
until its provides it with a warrant. This is the type of situation in
which it is prudent to assert the right to call an attorney or to seek
What rights does an employer have with respect
to property seized from its business pursuant to a search warrant?
An employer has a right to obtain a copy of the search
warrant from ICE. In addition, the employer may request and obtain an
inventory of all property and documents taken by ICE from its property.
If personnel records or other business documents are taken which the employer
needs to carry on its business, it can make arrangements through its attorney
or otherwise to obtain copies of such documents from the ICE. The government
will maintain control of the seized property until the investigation is
Does the fact that ICE comes onto an agricultural
employer's property with a search warrant mean that the employer will
be charged with a crime?
No. It simply means that ICE has a reasonable basis
to believe the employer and/or its employees may be in violation of the
law and it believes that it has a duty to follow up on information provided
to it by informants or other sources. As a result, it is always prudent
for an employer who has been served with a warrant to act, within limits
discussed above, in a cooperative manner with ICE and any other law enforcement
agencies that may be involved. In some cases, especially where the employer
has properly completed and maintained I-9 Forms, employers are not charged
with criminal or civil violations after a search of its employees and
records. ICE may, however, apprehend and offer summary deportation to
those employees found during a search of the agricultural property not
to have been in the U.S.
legally and with proper work authorization. In such
cases, it is the employer's loss of a significant part of its workforce
during a peak period that may cause the greatest harm.
Should an employer submit to an interview
or allow its management employees to submit to an interview at the worksite
during an ICE execution of a search warrant?
This is always a difficult question to answer. From
the standpoint of establishing a cooperative relationship with ICE, especially
if an employer believes that it has made a good faith effort to comply
with the law and has not knowingly hired or authorized the hiring, smuggling
or harboring of illegal aliens, there is a natural inclination to answer
questions posed by ICE. On the other hand, the fact that ICE has gotten
a search warrant indicates it believes that your business may be involved
in criminal activity. An employer has a constitutional right not to answer
questions during a criminal investigation. Moreover, while an employer
cannot obstruct an investigation, it is not required to make its managers
or employees speak to the law enforcement agencies once such an investigation
and search is under way. Under such circumstances, it may be prudent to
consult with a legal advisor and to advise any of your employees whom
ICE wishes to interrogate to do the same.
WHAT SHOULD AN EMPLOYER DO AFTER AN ICE AUDIT
OR INVESTIGATION PURSUANT TO A WARRANT IF ICE INFORMS THE EMPLOYER THAT
CERTAIN EMPLOYEES HAVE PROVIDED THE EMPLOYER INVALID WORK AUTHORIZATION
Once ICE obtains an employer's I-9 Forms and related
documents pursuant to a routine audit or pursuant to a warrant, it will
determine whether the document numbers on the I-9 Forms are valid and/or
relate to the name associated with them. ICE can check such documents
with its own database of ICE-issued documents and with the Social Security
Administration. Unless they participate in the E-Verify telephonic and
electronic verification program, employers are not required nor able to
independently verify the validity of employment documents given them by
After checking the validity of documents, ICE will
notify the employer if some of the workers have given invalid documents.
Usually, such notification is given in writing; however, there have been
instances in the past where ICE has provided such information to an employer
by telephone or verbally onsite.
Should an employer always request written
direction from ICE indicating which workers are not work authorized?
Yes. An employer should insist it be given written
instruction from the ICE that certain employees have provided invalid
documents. Without written confirmation, an employer faces the risk of
a discrimination charge from an employee terminated as a result of incorrect
information provided by ICE who is, in fact, authorized to work.
(9) By having a written communication from ICE, an employer
is in a more defensible position.
What should an employer do once it receives
written notice from ICE that certain employees have provided invalid work
Once an employer receives written notice from the
ICE that some of its employees have provided invalid work authorization
documents, it is put in the position of having knowledge that it may be
employing illegal aliens. Given that knowledge, the employer must take
reasonable steps to resolve the employment status of the named employees.
Failure to do so will subject the employer to charges of knowingly employing
an illegal alien. DHS' "no-match" rule issued last year refers to this
situation with regard to DHS-issued documents. It also applies to Social
Security "no-match" documents. (10)
An employer should inform each employee that ICE
has identified them as having provided invalid work authorization documents.
The experience of many employers suggests that most employees, confronted
with the allegation by ICE at they have provided invalid documents, will
voluntarily leave the job and not return. The employee, nonetheless, should
be offered a chance to explain any problems or to obtain documentation
that further evidences their work eligibility. The employee should be
given a limited period of time to produce the documentation. If an employee
does follow up with additional work authorization documents, the employer
should follow up with ICE to determine whether the new documentation is
valid. If ICE indicates that it is not, the employer is in a position
to terminate the employee.
We urge caution in this area. If employers fail to
act on information provided by ICE, they face employer sanctions charges.
If they act too quickly upon it without giving the employee a chance to
address the problem, they face discrimination charges. There are a number
of cases where the ICE has incorrectly informed employers that certain
employment authorization documentation is invalid. After the workers have
been terminated based on that information, the workers will sue the employer,
alleging they were discriminated against on the basis of citizenship status.
By giving the employee a chance to rectify any information provided by
ICE that turns out to be wrong, an employer makes its defense against
a discrimination charge stronger.
Should employers compare lists of employees
with invalid work authorization document numbers provided by ICE with
the names of future applicants for employment?
Yes. As noted above, once ICE provides an employer
with lists of individuals whose work authorization cannot be established,
the employer is on notice that it may be employing illegal aliens. Once
the employer confronts the individual employees with such information,
and they subsequently are let go or fail to return to work, the employer's
duty is not over. It is wise for employers to compare the names and employment
document numbers provided by ICE on its list with the names and document
numbers provided by future applicants for work. If they match, the employer
should not re-hire the individuals until their work eligibility status
There are examples in agricultural employment where,
because of the rapid turnover of seasonal workers, employers who have
terminated workers identified by ICE as having given invalid documents
have unknowingly rehired them in a subsequent season. Because of the large
number of seasonal hires and foremen involved in hiring, the office manager
completing the I-9 Form may not remember that the worker reapplying was
previously terminated for false documents and accept his/her documents.
If the person completing the I-9 Form does not compare the ICE list of
unauthorized workers and their document numbers, with the name and document
numbers of each new hire, it is possible to inadvertently hire such person
during the next hiring season. If an employer is subject to a follow up
audit by ICE during the next season and ICE finds an individual on the
list it previously provided is still employed or reemployed, it is likely
it will charge the employer with knowingly hiring an illegal alien.
This situation is illustrated in a criminal case
brought against an agricultural employer whose office rehired several
workers previously let go as a result of an ICE audit identifying the
persons as having invalid work authorization documents. While the persons
changed the names on Social Security cards they offered as work eligibility
documents when they reapplied to work at the farm the next year, they
retained the same invalid Social Security numbers. When ICE showed up
for another audit and found that the persons had been rehired, albeit
with different names but the same Social Security numbers, it indicted
the owner of the farm for criminal harboring of illegal aliens. The farmer
stated that it checked the names on the ICE list but did not compare the
Social Security numbers. ICE apparently believes the owner should have
checked both the names and Social Security numbers and has concluded that
the employer knowingly hired unauthorized workers and, by providing them
with farm labor housing, also harbored them.
This memorandum describes some of the common circumstances
employers face during ICE and DOL investigations and the advice provided
applies generally to those circumstances. It is nonetheless important
that employers facing an investigation contact their own counsel for advice
that is tailored to their unique circumstances.
Monte Lake serves as NCAE's Washington counsel and is
a partner in the Washington, DC law firm of Siff & Lake, LLP.
2. The following summary is intended
to provide general guidance regarding investigations common to the agricultural
workplace. The reader should recognize that every investigation has its
own unique circumstances and if one is uncertain as to what his/her rights
and responsibilities are, help from an expert or lawyer should be sought.