By: Angelita Chavez-Halaka and Elizabeth Goings

Earlier this week, the Acting Director of the U.S. Immigration and Customs Enforcement (ICE), Thomas Homan, stated the agency’s intentions to increase immigration enforcement in the workplace.

Now, more than ever, employers and employees should know their workplace rights and how to prepare.

Employers can take a few steps to prepare:

Conduct a Form I-9 audit. A Form I-9 is required for everyone hired and must typically be kept for three years after hiring. The best time to perform a Form I-9 audit, if you have not done one yet, is if you have changed Human Resources personnel, or experienced other corporate changes.

Have a written response plan with your employees. ICE may visit worksites without prior warning. Employers and employees have the right to remain silent and ask to speak with a lawyer. It is therefore important to stay calm and develop a plan with counsel and all stakeholders on how to respond to an ICE agent if they enter your workplace. For instance, you can train staff to say, “Please talk to my employer.”

Know If a Warrant is Required. For now, ICE can enter the public areas of your business without permission including parking lots, hotel lobby, waiting areas, and dining halls in restaurants. Private areas are protected and can only be entered with a judicial search warrant. You may want to mark these areas as private. Employer should read the warrant carefully—Administrative Warrants are not the same as Judicial warrants.

Some states may have other laws regarding ICE inspection. For instance, Effective January 1, 2018, a new law in California--the Immigrant Worker Protection Act (AB 450)--imposes an obligation on California employers to ask for a warrant before officials may enter a workplace to interview employees. It also adds a confidentiality provision for certain information requests. It also requires employee notification upon ICE’s determination that there is a lack of work authorization. Employers may be faced with penalties for failure to notify their employee.

Stay up-to-date on other immigration alerts. Please sign up for our Chugh LLP newsletter pertaining to employment based immigration matters at www.old.chugh.com

Resources:

• ICE Statement: https://www.ice.gov/news/releases/statement-ice-acting-director-tom-homan-california-sanctuary-law
• Know your Employer/Employee Rights: https://www.nilc.org/get-involved/community-education-resources/know-your-rights/workplace-rights-employers-workers/
• Immigration Worker Protection Act (AB 450): https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB450