WAL-MART, SWIFT & Co.—both corporate stalwarts—both targets of Immigration and Customs Enforcement (ICE) workplace raids. Ohio and Kentucky too show an increase in ICE raids, with recent raids of Fischer Homes and Spectrum Interiors, as well as numerous small employers and temporary employment agencies across the country.

The Immigration and Citizenship Practice Group of Taft’s Labor and Employment Department provides advice to employers on avoiding ICE raids, establishing Best Practices in hiring and employment verification, and represents employers who are subjects of government I-9 audits, Social Security No-Match letters, and subpoenas. The recent addition of Ralph Kohnen to the firm, with over 16 years experience as Assistant U.S. Attorney, adds to Taft’s capabilities in ICE white collar criminal investigations and Grand Jury proceedings.

So what should employers do? Here is what ICE lists as “Best Hiring Practices”, announced in its ICE Mutual Agreement between Government and Employers (IMAGE) program:

• Use the government’s Basic Pilot Employment Verification Program, utilizing only individuals who have received internal training on how to manage completion of Form I-9 (Employee Eligibility Verification), and how to detect fraudulent documents in the I-9 process.
• Arrange for annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in the I-9 process.
• Establish procedures for reporting to ICE violations or discovered deficiencies.
• Establish a protocol for responding to SSA no-match letters.
• Establish a Tip Line for employees to report activity relating to the employment of unauthorized aliens, and a protocol for responding to employee tips.
• Establish and maintain safeguards against use of the verification process for unlawful discrimination.
• Establish a protocol for assessing the adherence to the “best practices” guidelines by the company’s contractors/subcontractors.
• Submit an annual report to ICE to track results of IMAGE.

All these measures may not be suitable for all employers, however. As the Swift & Co. case informs, doing all or some of ICE’s Best Practices does not prevent an ICE raid. As Swift discovered, the Basic Pilot Program did not and cannot provide a safe harbor from document fraud, and is not applicable to any but new hires. Each employer must fashion its own compliance program to best suit its situation.

Future e-Bulletins will focus in more detail on individual Best Practices for Form I-9 completion and maintenance, SSA No-Match Letters, and how to prevent or react to an ICE raid at your company.