With immigration in the news now more than ever, and a national shift in enforcement strategy by the Trump Administration, it is important to prepare your staff for a visit by Immigration and Customs Enforcement (ICE) officers. ICE is now more likely to pick up targeted persons at the worksite, and we expect that more worksite enforcement will soon follow, even for those who are doing their best to check for valid documents.
By ensuring your staff knows the procedures to follow if ICE officers come to your door, you can avoid escalating the situation while also protecting your business and your employees.
Often ICE officers are only dropping off a “desk audit” subpoena (i.e., when ICE wants to review the company’s I-9s). In this event, you have three days to respond and should take the information and let the agents go on their way. You should immediately notify your attorney when you receive a desk audit.
In other instances, they are looking for a particular person to take into custody. In this event, staff should not tip off the person or in any way impede the process. The person does have a right to refuse to speak to the ICE officers and to call an attorney. You should also report this incident to your attorney to review your compliance processes.
Worksite “raids” have not been common for several years, but are expected to become more common. The following information is offered to assist you in preparing for this event.
Your procedures, documented in your employee handbook, should outline the process:
- The person who greets the ICE officers (front-desk receptionist or other staff) should request the warrant.
- The receptionist should have another staff member read the warrant, call the company’s attorney, and email a copy of the warrant to the attorney.
- The receptionist should inform ICE officers that company policy is to contact the company’s attorney.
- The receptionist should offer the officers to speak with the attorney. Sometimes the officers will speak with the attorney over the phone, so you should try this method.
- During the above process, the other ICE officers on site may begin searching and collecting documents and computers.
- Ensure you have your data backed up off-site, so if a computer is taken, your business can continue to function.
- In most instances, the officers will simply take a copy of your hard drives.
- An employee should follow each officer around the site and video record what is happening.
- If the employee believes the officer is doing something beyond what is allowed in the warrant, the employee can question the officer and make note of the excessive behavior on video.
- The ICE officers may request to speak with specific employees or that employees be gathered.
- Make sure your employees know that although they are obligated to follow ICE directions, they are not obligated to speak with ICE on an individual level without an attorney present. Employees should not tip off or hide others, or in any way block ICE from doing their work. Your employees may choose to speak with ICE officers and you should not prevent them from doing so.
- Make sure your employees know the ICE officers cannot keep them on site unless they are under arrest. Your policies should include specifics on what procedures will be followed to respect your employees’ rights and their health and other needs.
- Unless a company spokesperson, employees should not speak with ICE officers on behalf of the company. Any questions asked should be answered by “I am not authorized to speak on behalf of the company.”
The people to identify:
- The receptionist or other employee(s) who would be the first to greet the ICE officers;
- The leaders at the company who will communicate what is happening to employees and reiterate the procedures to follow; and
- The spokespeople who are authorized to speak to ICE on behalf of the company (i.e., those who are familiar with the full process and are in communication with the company attorney).
Visits from agencies other than ICE
Although ICE is the agency most likely to visit a worksite regarding immigration enforcement, you might also see Fraud Detection and National Security (FDNS) agents and Department of Labor employees looking into immigration matters. The FDNS agents will be looking into compliance with terms of temporary visas and will not normally have a warrant. Remember, when ICE, FDNS, DOL, or any other agency visits your office, the first thing to do is call your attorney.
Increased enforcement efforts and promises from President Trump are likely to lead to more worksite visits from Immigration and Customs Enforcement for the foreseeable future.
If you have any concerns about your employees’ ability to work in the United States, you should contact an attorney with worksite compliance expertise to work through your specific situation. Criminal penalties and civil fines can be levied against companies and individuals for “knowingly” hiring or continuing to employ an individual without proper authorization to work in the US.
Make sure your procedures identify the individuals responsible for responding to federal agents, that those individuals know their roles and that your staff knows their rights and responsibilities in the event of an ICE raid.