Employer guidance on ICE enforcement actions

The United States Immigration and Customs Enforcement (ICE) operates under the Department of Homeland Security.

Established in 2003, ICE is responsible for enforcing federal laws on border control, customs, trade and immigration. President Trump has announced a heightened focus on immigration enforcement action. As a result, there has already been an increase in ICE visits to workplaces and there will likely be an increase in I-9 audits in the coming months. The guidance below provides an overview of employer rights and obligations as well as how to best prepare and respond to ICE enforcement action.

Employer rights and obligations

Employers should aim to be cooperative and non-evasive while acting within their rights and obligations in responding to any ICE enforcement action.

Access to premises

ICE agents can enter public areas (parking lots and lobbies), but need consent or a judicial warrant to enter private areas. 

• A judicial warrant is a formal written order that authorizes ICE agents to make an arrest, a seizure or search. A valid judicial warrant will be signed by a US district court or judge and will include: (i) the location to be searched, (ii) the persons or items to be seized and (iii) be dated and issued within the past 10 days.

• An administrative warrant will read “US Department of Homeland Security” and will be on forms I-200 or I-205. An administrative warrant does not allow agents to enter non-public areas without permission.

Providing information

Employers have an obligation to comply with a judicial warrant. However, employers are not obligated to provide information or assistance beyond the scope of the judicial warrant, such as indicating whether an employee is on site, providing the immigration status of employees or helping sort employees by immigration status or nationality.

I-9 documentation

ICE has the right to conduct an I-9 audit by first issuing a Notice of Inspection (NOI). An NOI may request form I-9s, a list of employees, wage reports, payroll records and E-Verify information. Employers have three business days to respond to an I-9 audit. Employers do not have to provide ICE agents access to these documents or physical spaces where these documents are located immediately upon the NOI being served. 

Seizures

I-9 has a right to conduct seizures within the scope of a judicial warrant.  Employers have a right to receive an inventory of any seized items.

Preparing for a visit by ICE

Employers can take the following proactive steps to ensure they are ready for any enforcement action by ICE.

ICE workplace response protocol

Employers should develop and prepare a written ICE workplace response protocol that covers the following:

• Designate a point of contact to administer all communications with ICE agents (for example, senior management or legal counsel).
• Address how employees should respond to any ICE visits. For example, employees can be instructed to merely direct the ICE agents to the designated point of contact.
• Provide guidance on documenting key information after an ICE visit.
• Develop a protocol for notifications to key individuals/entities including employees’ family members and any union representatives.
• Provide guidance on how to manage customers or clients on site.

Train employees

All employees should be trained on the ICE workplace response protocol. This may include conducting practice drills. In particular, ensure your designated point of contact is appropriately trained and comfortable responding to any inquiries by ICE. 

Know your rights training

Employers may choose (but are not obligated) to provide employees with training on their rights, including those identified below. Further, employees should be advised to remain calm, do not run, do not lie and do not provide false documents.

• Right to restrict access: Employees do not have to allow ICE agents to enter the premises. Instead they can respond that they are not authorized to grant permission to enter the area and direct them to the designated point of contact.
• Right to remain silent: Employees have a right to remain silent and/or direct questions to the designated point of contact. 
• Right to decline a search: ICE agents cannot search an individual without consent or probable cause.
• Right to seek counsel: Employees can refuse to answer questions and request an attorney.

Designate private areas within the workplace

Designate any private areas with signs stating “employee’s only” or keep private areas locked from public access.

Ensure I-9 compliance

Confirm that all employees have completed an I-9. To ensure compliance, conduct regular I-9 audits and training. Employers should also consider using E-Verify.

Anticipate workplace disruptions

It is very likely that as ICE activity increases, the workplace will be disrupted. There may be increased absenteeism or work stoppages. Consult with counsel to ensure that you do not run afoul of any laws, including the National Labor Relations Act.

Responding to an ICE visit

If ICE shows up at your business, follow the steps below during and after the visit:

• Remain calm and professional: It is critically important that you remain professional at all times. You want to be cooperative while exercising your rights.
• Immediately call counsel: Immediately notify ICE that you are represented by counsel and are contacting your counsel.
• Request identification: Ask the ICE agents to present their identification, including their badge and a copy of the warrant, and to identify the scope of their visit.  
• Obtain a copy of the warrant: The designated point of contact should request a copy of the warrant and follow the established protocol for confirming the validity of the warrant (for example, a judicial not an administrative warrant) and compliance with the scope of the warrant.
• Document the visit: Maintain records of ICE agents on the premises including critical information such as ICE agent names, the date and time of the visit, badge numbers, areas searched and if any documents were seized. If employees are arrested, ask where they will be taken. If documents are seized, request a copy of the property receipt and search warrant inventory log.

Employer don’ts during an ICE visit

• Do not destroy documents.
• Do not provide false information.
• Do not instruct employees not to cooperate.
• Do not hide or help employees leave the premises.
• Do not discriminate against employees based on their immigration status or if they are questioned by ICE. 

Responding to an ICE I-9 audit

If ICE provides you with an NOI, follow the recommended steps below:

• Immediately call counsel: Immediately notify counsel that you have received an NOI.
• Review and prepare documents: Employers have three business days to provide any documents.
• Review warrants: The designated point of contact should confirm that it is a judicial warrant that appropriately identifies your business address, is being executed within the designated time and ensure that the ICE agents are acting within the scope of the warrant. If it is not a valid judicial warrant, the designated point of contact should inform the agents that the employer does not consent to the agents entering private areas.
• Document the visit: Maintain records of ICE agents on the premises including critical information such as ICE agent names and badge numbers, what areas where searched and if any documents for seized. If employees are arrested, ask where they will be taken.