In the last few months, various industries with larger immigrant workforces have witnessed increased workplace scrutiny. Inspections and audits led by the U.S. Immigrations and Customs Enforcement Agency (ICE) are being conducted with greater interagency collaboration, and there has also been heightened scrutiny of I-9 documentation, which verify identity and work authorization.

ICE and other law enforcement agencies may audit or investigate your company for various reasons, such as tips from other agencies, criminal leads, or because you operate in a targeted industry or area. Anonymous tips — submitted via ICE’s tip line or form by concerned individuals or disgruntled employees — can also trigger investigations.

Since any company can be targeted, all businesses should take basic precautions to prepare and protect themselves. Two key areas are reviewing I-9 forms and processes, as well as having an action plan in the event of a visit.

Reviewing I-9 Forms and Process

The Form I-9 demonstrates your good-faith effort to comply with the Immigration Reform and Control Act (IRCA). With its specific requirements, any mistake and/or omission could result in fines, each one contributing to a possible hefty total penalty. To reduce your exposure in case ICE targets your company with a Form I-9 audit:

• Review your process for completing new I-9 forms, ensuring you are using the most current versions and that they are completed fully, in a timely manner, and accurately. 
• Review your record-keeping procedures.
• Consider starting to track the home countries of employees under TPS classification in case those extensions are legally revoked.
• Conduct an internal review of your I-9, ensuring you have a complete and compliant I-9 for each active employee on your payroll roster, as well as any employee who has terminated within the last year.
• Follow compliant procedures to correct or notate errors on the Form I-9 while avoiding any suspicion or concern among your employees. Maintain an audit log based on your employee roster to track progress.

Developing a Plan of Action and Preparing for Immigration Audits

ICE agents may visit a company for several reasons, such as to audit I-9 Forms, investigate a specific individual, or, very rarely, conduct an immediate enforcement action, known as a raid. While these actions have different characteristics in terms of severity, timing, and comprehensiveness, a company’s action plan can minimize impacts while ensuring compliance in each case. Your company’s plan of action, in compliance with applicable federal and state laws, should include:

• Find and engage an attorney who specializes in immigration and has experience with ICE. Keep them on call as soon as agents arrive to counsel you through their search, investigation, and/or audit, as well as to review your plan of action.
• Determine the company’s philosophy on giving agents access to employees, areas, and/or documents when not mandated under a judicial warrant. Allow for flexibility in making determinations based on each individual situation and in accordance with legal advice.
• Distinguish between private and public areas (e.g., signs, locked doors, security access, etc.).
• Designate a point person(s) within your company who will interact with the agents and provide the company’s response, documents, and other necessary information. Train them on how to interact with agents and document the visit, search, and/or seizure, ensuring that a trained employee accompanies each ICE agent during their visit.
• Train first-contact employees (i.e., security guards and receptionists) how to interact with the agents and to notify the point person(s) upon the agents’ arrival.
• Know what you legally cannot do, such as destroying documents, providing false information, or instructing employees not to cooperate.
• Coordinate with clients regarding field employees who may be impacted by a visit to your location or to the client’s work site.
• Establish a protocol for notifying the family or union representative of any employee taken into custody.
• Review and update your plan of action, designated point people, and procedures regularly to ensure your organization is always prepared for a visit from ICE or other law enforcement agencies.

Please note that you cannot provide guidance to or assist an employee in avoiding law enforcement during a visit. However, you may choose to provide employees with general resources and knowledge before a visit to help them legally protect themselves.

Support Options

As the immigration labor landscape changes rapidly, contract cleaning business owners will be served well by preparing and staying engaged with associations like BSCAI and their partners. HR experts, in particular, are well-equipped to review Form I-9s and procedures, train employees on how to complete such forms, refer you to immigration attorneys, and more. By taking proactive measures, contract cleaning business owners can mitigate risk and ensure compliance with evolving regulations. Staying informed and prepared not only protects your business but also fosters a legally sound work environment. 

Paige McAllister is the vice president of compliance at The Workplace Advisors. The Workplace Advisors is a BSCAI Affinity Partner and a leading national consulting and training firm that understands the needs of building service contractors. They provide expert guidance and support services, including HR compliance consulting support, custom-tailored employee handbook services, monthly legislative updates and follow-up consulting, and more.