The Difference Between ICE Raids and Audits

​Workplace raids conducted by Immigration and Customs Enforcement (ICE) have returned this year after an absence of a decade. ICE audits have been increasing at an accelerated rate under the Trump administration.

So, what's the difference between raids—also called targeted enforcement operations— and audits?

An ICE raid is like it sounds. A part of ICE called Homeland Security Investigations shows up at the employer's premises without warning, hoping to catch employers and employees off guard. Raids often occur after an ongoing investigation shows a number of undocumented workers are employed there, often with the knowledge and/or assistance of the employer.

When ICE arrives at the worksite, its agents surround the building and usually have aerial support. Agents enter the business with a criminal search warrant. The warrant will have a detailed description of what and where agents are going to search and what they may seize. This list may include: payroll; I-9 forms and any supporting documents; bank records; Social Security Administration documents; IRS Form 940 and 940 employment tax documents; and other financial or employee records. The employer should immediately contact its immigration legal counsel.

Employers are not required to answer agents' questions during a worksite raid. If, during a worksite raid, ICE discovers unauthorized workers at the site, it may arrest and detain them. At the end of a raid, ICE agents should leave an inventory of the property they seized and a list of employees arrested.

The April 2018 raid at Southeastern Provision, a meat-processing plant in Bean Station, Tenn., is a recent example of an ICE raid. The investigation began when the employer's bank inquired of company officials why it was making large cash withdrawals every week. The employer said it was for payroll. After the bank provided this information, the IRS subpoenaed the company's bank records, which confirmed these large cash withdrawals. Later, a confidential informant was sent to Southeastern Provision and was hired without filling out an I-9 form. Based on this evidence and other evidence gathered in the investigation, ICE and the IRS raided the employer's facility and detained about 100 employees.

An ICE audit is friendlier than a raid but can also lead to damaging results. In this situation, ICE serves a Notice of Inspection (NOI)/subpoena on the employer, requesting all I-9 forms with supporting documentation as well as many other documents. Normally, the visit to the employer's premises is unannounced, as with a raid. But there the similarities cease. Usually two agents will serve the NOI/subpoena on the employer and demand production of records within three business days. The agents will ask if the employer wishes to waive the three days. Under no circumstances should an employer waive the three days. Upon receiving an NOI, the employer should contact its immigration legal counsel or hire one if the employer does not have one.

Other records that will normally be subpoenaed include a copy of payroll, a list of current employees and a list of former employees for the past one to three years; Social Security Administration documents; IRS Form 940 and 940 employment tax documents; business licenses; and a list of companies that were contracted for work.

The ICE agents have the right to receive and inspect the originals of the employer's I-9 forms. The employer should copy all documents that it turns over to ICE. Once the employer provides the documents, an ICE auditor inspects the I-9 forms to determine whether they comply with the law. The ICE auditor is checking for substantive violations, such as incomplete or missing forms, and technical violations, which an employer will be given 10 days to remedy.

Worksite raids and ICE audits will be frequent tools of ICE. Every employer should be vigilant in its immigration compliance, conduct an internal I-9 audit, and draft or review an immigration compliance policy.

Bruce E. Buchanan is an attorney in the Nashville and Atlanta offices of Sebelist Buchanan Law PLLC. He is the co-author of The I-9 and E-Verify Handbook (Alan House Publishing, 2017). Reposted with permission. ©2018 Sebelist Buchanan Law PLLC. All rights reserved.

Do you need to learn more about employment-related immigration? Looking for some recertification credits for your HR credential? See these SHRM eLearning courses on how to manage immigration in your workplace. Many SHRM eLearning programs offer professional development credits (PDCs) for SHRM-CP and SHRM-SCP credentials.