Undocumented immigrant small business owners face a unique set of concerns when it comes to their business. In this article, we will respond the most common questions that you may have as an undocumented business owner, especially in light of the latest news on ICE raids across the major metropolitan areas in the United States announced by President Trump. This operation is expected to target thousands of undocumented immigrants with consequent deportation orders. Could this situation and the new immigration laws affect your own business?
Is it Illegal to Own a Business as an Undocumented Immigrant?
There is no law that says undocumented immigrants can’t own their own business.
Many undocumented immigrants who do not have legal permission to work in the United States have their own businesses. In fact, there are hundreds of thousands of American small businesses that are owned by undocumented immigrants: out of the 10.5 million unauthorized immigrants in the U.S. estimated in 2017, about 12.2% of them run their own business.
How Do Immigration Laws Affect Businesses?
Under federal immigration laws, businesses in the United States are not allowed to hire workers who do not have permission to work. Businesses that hire immigrants who lack work authorization can face civil or criminal penalties. Therefore, it is important for small businesses to verify the work authorization of employees and take actions to protect themselves.
What Happens if Immigration Officials Target Your Business?
The government agency that enforces the immigration laws against businesses is U.S. Immigration and Customs Enforcement (ICE), a sub-agency of the U.S. Department of Homeland Security (DHS).
If ICE believes that your small business may be employing immigrants who do not have work authorization, it may conduct an audit and/or raid of the business.
In an ICE audit, ICE serves the employer with a Notice of Inspection (NOI) to inform them of the audit. The NOI may request Employment Eligibility Verification Form I-9 documents and various other documents. Form I-9 is the form that an employer must have filled out for each of its employees to verify their identity and employment authorization before hiring them in the United States. ICE will typically give the employer three business days to respond to this audit request for documents, although the time can be shorter if there is a criminal investigation. After, ICE conducts an investigation for compliance.
An ICE workplace raid can happen without warning. ICE may have already conducted an investigation and identified that undocumented immigrants may be working at the business. These raids are conducted by Homeland Security Investigations (HSI), which is part of ICE. In order to carry out a raid, ICE HSI must have a warrant that describes what documents they are searching for and where they are looking. Unfortunately, ICE can attempt to arrest and deport undocumented workers encountered during the raid of the business.
If ICE finds that the business has violated immigration laws through the process of an audit or raid, the business may have to pay civil fines. ICE will notify the business of inspection results and provide the employer 10 business days to make corrections for any violations. If there are violations left unresolved after 10 days, civil fines can range from hundreds to thousands of dollars per violation.
ICE takes a five-factor approach when considering what penalties to levy on an employer: (1) the employer’s size; (2) the gravity of the violation; (3) the involvement of unauthorized worker(s), if any; (4) the employer’s prior violations, if any; and (5) the sincerity of the employer’s compliance efforts.
Additionally, employers who knowingly violate immigration laws can face criminal prosecution.
What Rights Do Immigrants Have During an ICE Workplace Raid?
Even though the topic of ICE raids is scary, immigrants must know and advocate for their rights. By knowing what requirements ICE has to follow, you can help protect yourself, your loved ones, and your community.
Generally, ICE is not permitted to enter a private workplace unless it has a search or arrest warrant signed by a judge or permission from the employer. Undocumented immigrants can protect themselves and their colleagues by refusing to let ICE into the workplace without a warrant. If ICE tries to enter the workplace anyway without a warrant, individuals can state that they do not consent to the search.
If ICE does have a search warrant signed by a judge, the warrant typically states specific locations ICE may search for certain items. It is important to not let ICE search any areas that are not listed in the warrant. Also, often the warrant does not permit ICE to arrest individuals. Lear here in detail what else should you do if immigration agents come to your business.
As an undocumented immigrant, you have the right to refuse to let ICE into your workplace without a warrant
What Happens If You Are Deported?
In addition to the consequences your business can face, ICE may be able to deport you if you are undocumented. Federal immigration law allows the government to deport individuals who do not have current lawful status, for example, if they crossed the border without being inspected by an immigration officer or they overstayed a visa by not leaving the country when the visa expired.
Some immigrants have defenses available to fight their deportation in immigration court. For example, anyone who expresses a fear of being persecution or torture as a result of deportation to another country has a right to request an interview with an immigration officer to apply for a form of humanitarian protection such as asylum.
In case you are ordered deported, it is important to have plans in place for your business. Undocumented immigrants can choose to have another person they trust continue to run their business in the event that they are deported, for example by assigning them the ability to make decisions through a power of attorney.
Where Can Immigrants Go to for Immigration Help?
Taking steps to get information can help empower small business owners to protect themselves and prepare. At Camino Financial we truly believe in our motto, “No Business Left Behind”, and we want you to know that, as an undocumented immigrant business owner, we stand by you.
As always, it is best for business owners and immigrant workers to consult with an immigration attorney on these issues for counsel. It is best to make sure that the immigration attorney is actually a licensed lawyer in good standing with a State Bar Association and that they maintain their license with continuing legal education. One of the best resources to check this information is through the American Immigration Lawyers Association (AILA) lawyer search.
There are also several websites available where you can search for low cost (or even free) immigration help and legal assistance in your state or region, for example, Immigrationlawhelp.org and Immi.org.
At Camino Financial we have a solid commitment with the Latino community. We believe in times like these, the best thing you can do is to know your rights as an immigrant and to get informed about the resources available. There are hundreds of institutions and organizations willing to provide you with the assistance you need. Continue reading here about the legal resources you can access.