ICE Worksite Raid: Employer Rights and Responsibilities

ICE has increased its enforcement activities. There is a marked increase in unannounced worksite visits by ICE, where ICE officers appear at the workplace unexpectedly, and ask to speak to various people and inspect the workplace and various documents. This can be unsettling for both the employer and its employees. To help ensure a smooth and productive visit for all involved, it is best for the employer and its employees to be prepared for such visits, know what to expect, and know their rights during these visits.

If you do not have a worksite enforcement action plan in place, consult with your immigration attorney to ensure you and your employees are ready. Here are some practical tips to include in your worksite visit plan.

Inform Reception. Inform the receptionist about the worksite visit plan. Typically, s/he will be the first person with which the ICE officer will come in contact. So, it is important that she is prepared and calm.

Designate a Contact Person. Choose a company representative to be the contact person to handle questions and the overall ICE visit. A Human Resources representative is a logical choice for this role.

Call Your Lawyer. When ICE arrives at your worksite, promptly call your lawyer. The receptionist or designated company contact can inform the ICE officer that you are calling your attorney. ICE will expect that you have immigration counsel, and contacting your attorney should not signal to ICE that you are nervous about the visit or trying to hide anything. Ideally, no one would speak with the officer until you consult your attorney.

Verify the Officer’s Credentials. Ask the officer for his/her business card and badge. Ask if s/he has any written orders for the visit, including a subpoena or search warrant. Make a copy of all of the presented documentation.

Seat the Officer. Offer the ICE officer a seat in a discreet conference room or office. S/he should have a comfortable working space while protecting the privacy of your workplace and employees.

Contain & Accompany the Search. The officer needs a search warrant or your consent to enter private work spaces (as opposed to public areas). A valid warrant must be signed and dated by a judge. It will include a time frame within which the search must be conducted, a description of the premises to be searched, and a list of items to be searched for and seized (e.g., payroll records, employee identification documents, I-9 forms, SSA correspondence, etc.). You should make a copy of the warrant.

In walking around public or private areas, the officer should always be accompanied by the company representative, who should take notes about what the officer is doing.

If the officer seizes any documents or equipment, you can note your objection, but they may still seize it. Take notes on what has been seized. Ask for a copy of the list of items seized during the search. The agents are required to provide this inventory to you.

Employee Interviews. The officer may request to speak with the foreign national in question. You should agree, and ask if you or your lawyer can attend that interview. They may say no. Do not hide employees or assist them in leaving the premises. Do not provide false or misleading information, falsely deny the presence of named employees or shred documents.

Protect Confidential & Privileged Records. If the officer wishes to examine documents designated as attorney-client privileged material (such as letters or memoranda to or from counsel), tell them they are privileged and request that attorney-client documents not be inspected by the agents until you are able to speak to your attorney.

Employees Rights. Ask if your employees are free to leave. If they are not free to leave, they have a right to an attorney. Though you should not instruct your employees to refuse to speak to ICE, they also have the right to remain silent and do not need to answer any questions.

ICE is not the only law enforcement agency that can visit or conduct an enforcement action against your worksite. The Department of Labor may also conduct an investigation, and in some jurisdictions, state and local police can act on behalf of ICE in an operation. For more information about your rights and responsibilities as an employer in the event of an ICE raid or other enforcement action or investigation at your work place, speak to a qualified immigration lawyer.