In recent weeks, there have been reports of Immigration and Customs Enforcement (ICE) agents conducting unexpected visits at U.S. businesses and worksites. This alert provides general guidance on how employers should prepare for and respond in the event of an ICE visit or raid at their workplace.
PREPARE FOR A VISIT OR RAID BY ICE BY MINIMIZING RISK AND HAVING A DETAILED RESPONSE PLAN:
Prepare a detailed response plan. Employers should work closely with an immigration attorney to prepare a detailed response plan in the event of a visit or raid by ICE. Designate an individual (such as general counsel, site manager, HR representative, or someone who will be on the scene) to represent the employer in the event of an ICE visit or raid. This designated representative should request to see the officers’ badges and refuse entry to ICE agents unless presented with a valid judicial warrant. Everyone else in the facility should be trained to contact the designated representative and notify ICE that only the designated representative is authorized to speak with ICE. Please remember an ICE warrant is not a judicial warrant and your receptionist, front office staff, and designated representative should be familiar with the difference between a judicial warrant and an administrative or ICE warrant.
Designate private areas. Immigration officers are free to enter any public areas of a workplace but must have a judicial warrant or consent before entering private areas. To prevent ICE agents from freely entering areas of your business, we recommend that you clearly demarcate private areas by placing a sign outside the area that reads “Authorized Personnel Only” or “Private.” Employers should maintain private areas by denying access to the public and only allowing employees or authorized personnel to enter the area. Employers may use locked doors or physical partitions to separate private areas from public areas.
Train employees. Employers should train employees on the response plan and advise employees to keep sensitive documents inside their desks or office spaces outside of plain view. Any documents in plain view may be seized by an ICE officer without a warrant.
Review Form I-9s and conduct regular internal audits. ICE raids may be triggered by the results of a Form I-9 audit. Employers should minimize their risk of visits and raids by ICE by ensuring that their business is in full compliance with I-9 regulations. Employers should conduct regular internal audits to ensure that their Form I-9s are accounted for and are free of errors.
DURING AN ICE VISIT OR RAID:
Remain calm and professional and follow the company’s response plan. Employee interaction with ICE agents should be limited. When ICE agents arrive, the designated representative of the employer (and immigration counsel, if retained) should be contacted immediately so that only they interact with the ICE agents. All other employees should remain calm and should avoid sudden movements. If an employee is approached by an ICE agent at the workplace, the employee can say “I don’t have permission to let you enter. Please speak with my employer.” The designated representative or a member of the response team should send notification to all employees that ICE is on the premises and instruct employees to remain in private or restricted areas until further notice.
Deny entry without a warrant. The designed representative of the employer should ask the ICE agents if they have a judicial warrant, and request to inspect it. As discussed above, immigration officers are free to enter any public areas of a workplace but must have a judicial warrant or your consent before entering private areas. If an ICE agent demands entry into a private area, request to read the warrant and confirm that it is a judicial warrant, signed by either a U.S. District Court or State Court judge. Know the difference between a judicial warrant, which grants ICE the right to enter a private area without permission, and an administrative or ICE warrant, which does not. Always examine the warrant and note the exact time, location, and name present in the warrant. You should not physically block any ICE agents from entering your business or private areas of your workplace.
Right to remain silent. ICE agents may ask employers to identify individuals by name, immigration status, or country of origin. Employers do not have to comply with this request, and do not have to assist ICE agents by providing information about employees unless presented with a valid judicial warrant authorizing such search. If ICE agents try to question you or your employees, you have the right to remain silent and to ask for a lawyer. Employees who are not U.S. citizens, such as green card holders and temporary visa holders (E/L/TN/H-1B), should carry their status documents in order to demonstrate their immigration status if ICE agents directly request to see documents. If presented with a valid judicial warrant, employees who are not U.S. citizens, such as green card holders and temporary visa holders (E/L/TN/H-1B), should carry their status documents in order to demonstrate their immigration status if they are detained and ICE agents directly request to see documents.
Observe and record. You have the right to video or record the ICE agents’ activities in your workplace. Ensure that you are providing enough physical space between you and the ICE agent when recording. Confirm if you have surveillance equipment in your facility, that it is in working order, and how to access any recordings. If you are not able to video or record the ICE agents’ activities, you should take detailed notes of the visit. Write down details of the ICE visit, such as how many agents were present, if they were wearing uniforms, and what questions they asked. This information can be helpful when speaking to an attorney following the ICE visit. Please remember to not record any information in your own notes that an ICE officer could see and use against you.
In the event of arrests, ask questions. If ICE agents arrest an employee, employers should ask where the employee will be detained so that the employee’s family can find them.
If you are interested in preparing a response plan in anticipation of an ICE raid or visit, contact your attorneys at Ryan Swanson.
In addition to the guidance provided here, we recommend attending the upcoming How to Prepare for an ICE Visit webinar on February 6, from 10:00 am to 11:00 am. Led by immigration attorneys Jen Chen and Abtin Bahador, this session is designed for HR professionals and business owners. They will discuss constitutional rights, types of enforcement actions, and provide practical strategies for preparing for, handling, and responding to an ICE visit to ensure compliance with immigration laws. The webinar will be available on Zoom, with a recording offered on demand afterward on our event page.
