When ICE Comes to the Jobsite
With workplace immigration enforcement on the rise, employers need to be proactive about compliance and prepared to handle potential visits from the Immigration and Customs Enforcement (“ICE”), whether for a routine I-9 audit or an enforcement action. The goal is to comply with the law while protecting your business and employees. On January 20, 2025, President Trump signed an Executive Order aimed at enhancing immigration enforcement, including a commitment to initiate what has been described as “the largest domestic deportation operation in American history.” This includes a directive for ICE to conduct raids in various sectors, with construction being identified as a likely target due to its high reliance on undocumented workers. ICE’s presence at the workplace can be discomforting and disruptive. Although ICE agents are not police officers, the uniforms may say “police” or “federal agent” and local law enforcement may accompany them.
Employers should minimize risk through compliance and should ensure they satisfy their Form I-9 obligations by doing the following:
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Confirm that all employees have properly completed I-9s on file: Cross-check payroll records to ensure compliance.
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Conduct regular audits: Periodically review I-9 records to identify and correct discrepancies. Internal audits demonstrate that an employer takes this requirement seriously and in good faith and can reduce penalties if a government audit finds violations. Consider involving outside legal counsel for thorough audits.
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Train staff: Conduct regular I-9 training of HR staff, managers, and other team members who complete I-9 forms. Training should include identifying documentation issues and handling situations involving potential unauthorized workers.
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Consider using E-Verify: While not mandatory for all employees, utilizing the E-Verify system, like regular internal audits, can show an employer’s due diligence in verifying work eligibility and may help reduce penalties in case of violations.
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The United States Constitution dictates that all persons have the right to remain silent in the face of investigations. Employees do not have to answer an ICE agent’s questions, hand over their identification documents, or otherwise cooperate without a judicial warrant. Instead, Company supervision should direct the ICE agent to an office or job trailer away from the work area where their presence might otherwise be disruptive and cause concern among customers, employees, or other visitors.
A judicial warrant is one issued by a judicial court and is signed by a judge or a magistrate. These warrants allow ICE to conduct any search, seizure, or arrest as authorized in the warrant, including employee files. Judicial warrants must be complied with. An administrative warrant (issued by Homeland Security or ICE) does not require compliance, and employees cannot be punished for refusing to comply. An administrative warrant does not authorize a search, though in certain instances it may authorize the agent to make a seizure or arrest.
Generally speaking, a general contractor is not responsible for IRCA (Immigration Reform and Control Act of 1986) compliance by its subcontractors. General contractors are not required to verify employment authorization for the employees of subcontractors and thus should not attempt to control the I-9 or E-Verify process of their subs. However, general contractors should have strong contractual provisions in their subcontractor agreements. These provisions should: a) require subcontractor compliance with IRCA; b) state that each request for payment constitutes a warranty of compliance with those laws; c) reserve the right to demand proof of compliance; and d) provide for defense and indemnity from the subcontractor for any immigration violations.
While a general contractor should not assert control over its subcontractor’s Form I-9 and E-Verify processes, certain “tells” require a general contractor to take affirmative action. These include: a) a credible tip that calls into question the work authorizations of a specific employer; b) a credible tip that a subcontractor is employing illegal immigrants; c) an employee request “sponsorship” for a work Visa; d) accusations of identity theft relating to a worker; or e) an ICE investigation into the subcontractor or worksite.
Because of the risk of substantial civil and criminal penalties, a general contractor should absolutely ensure that its own I-9 and E-Verify process for confirming employee identity and documentation is followed carefully. A general contractor should also be aware of the potential risk of liability for knowingly permitting or allowing a subcontractor to utilize undocumented labor.
