What to do during an ICE raid or I-9 audit

If you find yourself in an ICE raid or I-9 audit, it’s important to know what to do to protect your rights and minimize risks. 

Knowing the steps to follow can be key to handling the situation in the best possible way. That’s why our immigration attorney in New Jersey is available to guide you through these critical times and ensure you make the right decisions.

What employees can do during an ICE raid or I-9 audit

During an ICE raid or I-9 audit, employees should follow these recommendations:

1. Stay calm: At these scenarios, it is key not to panic, as staying calm will help you handle the situation more efficiently.
2. Do not obstruct the investigation: Although employees have rights, they should not interfere with or obstruct the work of the authorities.
3. Ask for a warrant: Employees have the right to request a warrant if officers attempt to enter private areas.
4. Do not consent to searches or provide passwords: No employee is required to consent to a search of records or to provide their passwords to their electronic devices without a court order.
5. Avoid speaking without an attorney being present: If agents ask questions, employees may refuse to answer without an attorney.
6. Take notes: If possible, write down the names, badge numbers of the officers, and any relevant details of the raid or audit.
7. No fleeing or destroying evidence: Fleeing or destroying evidence may create probable cause for an arrest.

What should I do if I am an employer and undergo an I-9 audit?

If you are an employer, we recommend that you:

1. Contact an immigration attorney. If officers arrive unannounced, speak to your attorney first before answering questions or signing documents.
2. Notify your employees and union representatives about the audit.
3. Remind your employees that they have 3 business days to submit Forms I-9.
4. Allow coworkers or union representatives to be present when discussing audit issues.
5. If ICE detects employees without employment authorizations, they will be given 10 days to submit the documentation or be forced to fire them.
6. Notify affected employees of the audit and request additional time from ICE if necessary.
7. If employees are unionized, provide copies of audit documents to the union.

What is an ICE raid?

An ICE raid is an operation in which Immigration and Customs Enforcement agents arrive unannounced at a workplace. It’s typically conducted to investigate an employer. 

Although ICE agents are not police officers, they may wear uniforms marked “Police” or “Federal Agent” and are often armed. Local police officers sometimes accompany them.

If ICE is looking for a specific worker, they may: 

• Question, 
• Detain, and 
• Arrest other people present at the scene.

What is an I-9 audit?

An I-9 audit is intended to ensure that the company is up to date with Form I-9 compliance .

This form is essential to confirm a worker’s identity and authorization to legally work in the US.

Key aspects of Form I-9

• Typically, the employer receives a notice of inspection (NOI) in advance.
• Form I-9 is required for all new employees.
• It must be retained for 3 years after hire or 1 year after the employee’s last day of work, whichever is later.
• An employee should not be required to complete Form I-9 more than once, unless their employment authorization is about to expire or for a valid legal reason.
• It is not necessary to keep copies of the worker’s identification or work authorization documents, only the completed Form I-9.

Although the names are similar, do not confuse the NOI with the Notice of Intent to Deny (NOID) .

What happens if the I-9 audit doesn’t go well?

If ICE determines during an audit that the rules were not followed correctly, the employer could face the following consequences:

• An order not to hire people without a valid employment authorization.
• Civil and criminal fines and penalties for failure to comply with Form I-9 requirements.

Who can be arrested during an ICE search or raid?

During an ICE search or raid, law enforcement may only arrest individuals who are in public areas. 

However, they can also arrest people in private areas if they have a valid warrant. In addition, to arrest someone, officers must have: 

• Arrest warrant, or
• Probable cause that the person has committed a crime or does not have legal status in the US.

It is essential that employees and employers avoid actions that could raise suspicions with the authorities. This could be grounds for arrest.

What to do if ICE detains you and you are a US citizen?

If ICE detains you and you are a US citizen, show your passport or other document confirming your citizenship. 

You are not required to answer questions about your status, but presenting your identification can help clarify the situation quickly. 

If you have another legal status, such as a Green Card, always carry those documents with you, especially if you are over 18.

Documents that do not give ICE permission to enter private areas during a raid or I-9 audit

It’s important to note that certain documents prevent law enforcement from entering or searching private areas in the workplace. These are:

• Administrative orders: This includes forms such as the I-200 (foreign arrest warrant) and the I-205 (warrant of deportation).
• Inspection notices: Requests to review Forms I-9 do not grant authority to search private areas or immediate access to non-public areas of the company.

Unless you give your consent, ICE agents cannot enter or search private areas.

Which law enforcement agencies can appear at a workplace?

There are several federal agencies that could be present at a workplace. These include:

• State and Local Agencies: Sometimes federal agencies, especially if they have a search warrant, may receive support from local authorities such as the sheriff or police.
• Homeland Security Investigations (HSI): This agency is responsible for collecting and inspecting Forms I-9 and other documents from employers to verify regulatory compliance.
• United States Citizenship and Immigration Services (USCIS): Conducts audits related to employment-based immigration sponsorship.
• Immigration and Customs Enforcement (ICE): Responsible for enforcing immigration laws. We remind you that although they are not police officers, they may be armed and carry similar equipment.

What to do after an ICE raid or I-9 audit?

If your employees face removal proceedings or are unable to return to work after a raid or I-9 audit, consider the following:

• Allow affected employees time off while they process their employment authorization. If the issue is resolved, let them return with seniority and benefits intact.
• Pay outstanding wages and benefits in accordance with labor laws.
• Provide compensation if employees are unable to return to work, helping them with basic needs and legal expenses.
• Contribute to a legal fund to support the defense and bail of affected employees.
• Provide job references for future employment opportunities.
• Stay connected with community organizations that offer support to employees and their families during this process.

Why contact our immigration attorney regarding an ICE raid or I-9 audit?

As immigration policies continue to evolve, it is key that employers and employees be prepared for potential interventions by authorities. 

• With the current focus on deportation enforcement and strengthening ICE, further immigration enforcement actions are likely.
• Therefore, immigrants should be informed and know what to do during an ICE raid or I-9 audit if officers show up at their workplace. 
• In this context, we recommend contacting our attorney Carolina Curbelo , who has more than 10 years of experience in US immigration law. 

Our expertise in immigration enforcement cases and ability to guide you through these scenarios will provide you with the advice you need to protect your rights and those of your company.

Now you’re better prepared for what to do if ICE shows up at your door. However, don’t wait for a raid or audit. Call us, email us, or schedule an appointment with the office to receive the legal advice you need.