Given the current administration’s focus on cracking down on illegal immigrants, employers can expect that Immigration and Customs Enforcement (ICE) will be either showing up on their property or conducting audits to examine whether any employees are not authorized to work. The time to plan is before this happens; ensure now that employees and managers know what to expect and what their rights are.
Many employers and employees do not know how to respond when ICE agents show up unannounced. The agents will be seeking to search your property, retrieve documents, and/or speak to your employees. Here are some dos and don’ts for how to handle the situation when ICE agents arrive unexpectedly.
DO:
- Have a plan. Who is going to speak to ICE on the employer’s behalf? Ensure that the person designated is properly trained and is knowledgeable about the employer’s rights and those of impacted employees.
- Think about ensuring you have immigration counsel ahead of time — someone who can respond quickly to any ICE raid or at the very least be available to handle questions that may arise during a raid.
- Let your employees know that they do NOT have to allow ICE agents to enter. Rather, they can say that they are not authorized to grant permission to enter and that the agents should speak with the manager or managers the employer has designated. Or if you have a lawyer who can come to your business immediately, the designated person should request that the ICE agents wait for counsel to arrive before proceeding.
- Advise your employees they do not have to speak with ICE agents. They can choose to (1) stay silent, (2) direct any questions to the designated managers, and/or (3) ask for a lawyer. The same advice goes for your designated manager or representative.
- Advise your employees that they do not have to hand over any identification or documents to ICE.
- Consider clearly marking what areas within your business are “private.” The public and visitors (which would include ICE agents) cannot enter private areas without permission or proper legal authority.
- Stay calm during any ICE raids and train your employees to do so. If employees attempt to run, ICE agents may say that they are likely violating immigration laws and arrest them.
- Watch the ICE agents to see whether they are complying with the terms of any warrant they present. If state law allows it, video what the ICE agents are doing. Make sure to read the warrant and make a copy if you can.
- If ICE arrests any of your employees, ask the ICE agents where the employees are being taken. That information will help the employees’ families and/or attorneys locate them.
- Make notes after ICE leaves: How many agents were there? What are their names and badge numbers? Did the agents make you or your employees believe you could not move or leave? Did they mistreat anyone? Make note of everything you saw or heard and of any items that were seized. You can also ask the officers for a list of items taken. If your business has a union, notify the employees’ union.
- Practice your plan so you can identify any gaps in training or knowledge.
- Ensure that you’ve done an I-9 audit recently so you can (1) determine whether there could be any issues with your employees and (2) have these handy if ICE seeks to audit your documents.
DON’T:
- Let ICE agents into a private area without a judicial warrant. The designated manager needs to review the warrant to ensure it grants agents the ability to go into private places. ICE agents have the right to be in any public areas of your business without permission or a warrant. Those public areas would include a dining area in a restaurant, a lobby, and a parking lot.
- Let ICE into private areas with an administrative warrant. A judicial warrant is signed by a judge and would say “US District Court” or “State Court” at the top of the warrant. The warrant would also have information concerning the time frame for the search, the premises to be searched, and a list of items to be searched and seized. Those items will likely include payroll and time records, I-9 forms, and employee identification documentation. On the other hand, an administrative warrant is not from a court. It would say “Department of Homeland Security” at the top. So if an ICE agent tries to enter a private area and does not have a judicial warrant, you can tell the agent you are not permitting them to enter without a judicial warrant. You can say something along the lines of “This is a private area. Do you have a judicial warrant? If not, you cannot enter.” (Click here for an example of both judicial warrants and administrative warrants.)
- Tell the ICE agent whether a particular employee named in an administrative warrant is working that day or not. You do not have to do so.
- Physically interfere with a search that goes beyond the scope of the warrant. You can inform the agents that you object to the search but do not attempt to stop them or intervene.
- Lie or provide false information or try to destroy or hide any documents or items. Similarly, do not help employees hide.
- Forget to research what local services exist to help immigrants and to pay attention to community organizations that may be able to assist both you and your employees.