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See Statista (https://www.statista.com/statistics/652960/employed-undocumented-immigrants-in-the-us-by-industry/).
If you own or run a business, even if none of your employees are undocumented immigrants, there is a chance that agents from U.S. Immigration and Customs Enforcement (“ICE”) may come to your business looking to inspect your Form I-9s and search for undocumented immigrants. Below are tips on what to do before, during, and after a raid.
I. Employment of Undocumented Workers.
It well-known that employing workers who lack authorization is unlawful. The penalties are less well-known because enforcement in this area has historically been relatively light.
As a reminder, under the Immigration and Nationality Act, 8 U.S.C. 1324a, sanctions for employing undocumented workers include:
A minimum of $375 per unauthorized worker for a first offense, and up to
$ 1,600 per worker for a third or subsequent offense
Up to $3,000 per employee in fines and/or up to six months in prison for a "pattern or practice" of hiring undocumented workers
The ability to conduct business may be revoked
- Additional criminal charges
If the undocumented workers were paid “off the books,” additional criminal charges may apply, such as tax evasion or willful failure to collect and pay over taxes
Factors that courts may consider when determining the penalties include: the size of the employer, the employer’s good faith, the seriousness of the violations, previous violations, and the actual involvement of undocumented immigrants. These factors allow for a good deal of discretion in applying punishment.
It remains to be seen whether the promised immigration crackdown will extend to business owners. Of small business owners, 76% are White, and in “battleground” states, between 53% and 71% of Whites voted Republican in the presidential election of 2024. Accordingly, the new administration has little political incentive to penalize, let alone imprison, business owners, for employing undocumented immigrants, particularly if they are political contributors. The incoming administration may, instead, use its discretion to issue warnings and token fines.
II. Before Deportation Agents Come.
Before the deportation project begins, there are a number of things a business at risk of a raid should do to prepare:
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Check your Form I-9s, make sure you have one for every employee, that they are fully completed, and that they are easily accessible. You can obtain a Form I-9 and instructions for completing it at this link: https://www.uscis.gov/i-9
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Internally audit your Form I-9s to ensure they are complete and correct. ICE provides a detailed guide on how to do this. See Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits at www.ice.gov/doclib/guidance/i9Guidance.pdf.
- Review your business interruption policy to see if you have coverage for a situation where the authorities arrest and/or detain a significant number of your workers.
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Those making decisions about which businesses to raid will likely have political connections. Accordingly, if local authorities are cooperating with the effort, and your business has the resources, it may be advisable to cultivate relationships with local political parties. If your business has even more means, you should consider hiring a lobbyist. If you are concerned about the appearance of impropriety, businesses can give unlimited “dark” money contributions to “SuperPACs” that indirectly benefit politicians. See Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010). Moreover, the United States Supreme Court has held that 18 U.S.C. § 666 does not make it a crime for local officials to accept gratuities for their past acts. See Snyder v. United States, 603 U.S. 1 (2024).
- Review your union contract to ensure you do not have any express or implied obligations related to immigration issues. You may have to bargain with the union over how the Company will respond to a raid and how it will treat employees who are detained.
- If you have no union contract, consider what your policy will be with respect to detained employees. Will you consider them to have been terminated? Will you consider them to be on leave? How long will you give detained employees to reclaim a job in the event they return?
- Advise your employees who are immigrants to have their immigration papers safe and accessible. If they can’t prove they are lawfully present in the United States, it may not matter if they are citizens.
- Ensure that all employees have multiple contacts through phone and email available to you so you can inform their relatives what happened if a raid occurs.
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Ensure your law firm either has an immigration lawyer on staff or can refer you to one. There is a risk that a raid will sweep up citizens, particularly those that do not speak English or speak accented English. Lawyers must intervene in the early stages to ensure that does not happen.
- Remind employees not to bring weapons to work.
III. What to do in case of an I-9 inspection or a raid.
It is crucial to understand the difference between an inspection of your I-9 records and a raid seeking to find undocumented immigrants.
A. I-9 Inspection.
If ICE agents want to see your I-9 forms, you should receive a notice of inspection in advance. You must comply with the notice and allow reasonable access for that purpose.
B. Immigration Raid.
Unless ICE agents have a warrant, they may not enter your premises uninvited for purposes of a raid. You do not have to speak to them and neither do your employees. Consider carefully before inviting agents on to your premises. As an employer, you are responsible for any racial or sexual harassment committed by your invitees if you have notice that it is occurring or is reasonably likely to occur. Accordingly, if such harassment occurs, you will be obligated legally to intervene to stop it, which could be uncomfortable or even dangerous.
If deportation agents have a warrant, they do have the right to come into your premises. They may make arrests. But you and your employees do not have to speak to them.
Agents do have the right to carry firearms into your building. If you keep firearms at your business, inform the agents that they are present and where they are secured. Consider no longer keeping firearms at your business if you expect a raid.
If your business is raided, do not try to deal with it on your own. Call an attorney. Deportation agents are likely to be inexperienced if numerous agents are hired in a short period of time or if local law enforcement officers unfamiliar with immigration law participate in a raid. They may not strictly follow procedures or fully understand your rights or those of your workers. Therefore, having a knowledgeable attorney present is important.
If you are questioned and asked to give a detailed narrative, offer to put it into writing, as the agents’ notes may be inaccurate, incomplete, or illegible.
IV. After a Raid.
- Bear in mind that, after a raid, regardless of whether employees are undocumented:
- You must ensure that you pay every employee who is swept up in the raid any wages that they are owed for time that they worked.
- You must file a workers’ compensation report of injury for any employees who are injured in a raid.
- If your workers received health insurance or other benefits, they may have the right to continue their health insurance or receive other benefits for a certain amount of time.
Also, there may be tension within businesses that are raided between those in favor of, and those opposed to, mass deportation. Accordingly, you may wish to adopt policies restricting political speech in the workplace.
V. Replacing Detained Workers
Your business may need to replace workers in an environment where raids have made them scarce. However, if numerous raids in close geographic proximity result in local or regional economic contraction, local wages may be depressed and workers who would have not taken the jobs done by detained workers prior to the raids may be more willing to do so.
Also, raids could free up two other additional sources of labor: a) citizen teenagers, from families where the parents were undocumented and detained, who remain and need to support themselves; and b) detainees in nearby camps whose labor may be available for as little as $1.00 per day.
In New York, 16 and 17-year-old children can work up to 48 hours per week. Allies of the incoming administration have sought to change labor regulations and allow 14 and 15-year-old children to work up to 24 hours per week and as late as 9:00 p.m.
Conclusion
In summary, while it is uncertain whether mass deportation will take place, or that its scale will be as promised, businesses cannot say that they did not see it coming and should prepare for its impact.
Paul P. Rooney is an employment lawyer in New York, New York. The views expressed in this article are his own and not of any other person or entity. The statements in this article are not legal advice.
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