What Employees Can Do When ICE Claims They're Not Authorized to Work in the U.S.
If you've been working without papers, you may encounter an ICE inspection.
The U.S. department known as Immigration and Customs Enforcement (ICE) has the authority to show up at a business or company and conduct an inspection, checking to see who among the employees has proven that they're authorized to work in the United States -- and who has not. If your name comes up among those whom ICE claims lack work authorization, what you do next depends on your actual status.
If you are authorized to work, you can work with your employer and with ICE to clear up the discrepancy. If you are not authorized to work, you will likely need to resign or abandon your job. We'll provide further details below.
Background on ICE's Function and Responsibilities
ICE is a part of the U.S. Department of Homeland Security (DHS). One of its missions is to ensure that employers do not hire unauthorized workers. ICE inspects employers’ I-9 forms (the forms that employees complete to prove that they are authorized to work) and notifies employers (using a “Notice of Suspect Documents”) when employees do not appear to hold valid work authorization documents.
If you have appeared on a Notice of Suspect Documents, your employer should notify you and give you an opportunity to contest the government’s findings by presenting documents to prove that you are authorized to work.
What to Do If You Hold Valid U.S. Work Authorization
If you are in the U.S. legally and hold valid work authorization, you should present documents to your employer as soon as possible. Your employer will show copies of the documents to ICE to confirm that you may continue to work.
ICE’s inability to confirm your employment authorization may be due to an error on your employer’s Form I-9 or a mistake in the government’s records. If you wish to be proactive in attempting to resolve the issue, you may consider using E-Verify Self Check. This system will allow you to find out whether the government’s databases match your personal information. In the event of a mismatch, the system will provide you with instructions for working to resolve the discrepancy. The system is available here.
If You Do Not Hold Valid U.S. Work Authorization
If you are not authorized to work in the U.S., you can
- admit to your employer that you are not authorized to work;
- resign without admitting that you are not authorized to work; or
- opt not to return to work (abandon your job).
You may wish to speak with an attorney to determine which option may be best for your situation. Note that your employer must pay you for all hours worked, even if you were not authorized to perform the work. However, it may be difficult for your employer to give you your final check if you abandon the job. During a normal ICE inspection, ICE does not typically arrest employees who admit that they lack work authorization or who resign, so there is generally not a reason to abandon your position. (Note that this is different from a so-called “raid,” in which unauthorized workers are arrested on-the-spot. Raids are uncommon in today’s political climate, but they are making a comeback, particularly in the restaurant industry.)
If you are not authorized to work in the U.S., it is not advisable that you try to submit false documents. Your employer will submit copies of the documents you present to ICE for verification of their validity; presentation of fraudulent documents or documents that do not belong to you may result in your arrest by ICE. You would likely end up in deportation (removal) proceedings.