With increasing workplace immigration enforcement, employers must be prepared for visits from the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE). ICE agents may appear at business to 1. investigate compliance with workplace rules as they relate to immigration laws (Form I-9 audit) or 2. enforce immigration laws (an ICE raid or an attempt to detain a worker). The thought of having any type of government agent appear at your workplace is stress inducing. However, knowing your rights and having a response plan will ease your anxiety.
Here is a step-by-step guide to handling ICE visits and audits while ensuring compliance with the law.
1. Understanding ICE Workplace Actions
ICE may seek to enter a business for three main reasons:
- Form I-9 Audit: ICE checks if your business has properly completed and maintained employee work authorization records.
- Worksite Raid: ICE agents conduct unannounced visits as part of an investigation.
- Targeted Detainment: ICE may come looking for a specific individual but could attempt to detain others.
Key Takeaway: Be prepared for each of these scenarios by understanding your rights and responsibilities.
2. Preparing for an ICE Visit
Proactive planning can prevent confusion and legal missteps. Employers should:
- Create a Written Response Plan – Make a plan that works for you and practice execution of the plan like you would a fire drill. Designate a point person to interact with ICE agents, and train employees on their right not to speak to ICE agents and to refuse entry without the correct warrant.
- Know the Difference Between Warrants – ICE agents may not enter private business areas without a judicial warrant signed by a judge. Administrative warrants (Forms I-200 or I-205) do not grant access.
- Train Employees Not to Speak to ICE – Employees should be instructed to say: “I cannot provide information. Please speak with my employer.” This allows you to ensure that your point person may review warrants, properly communicates with ICE agents on your behalf, and properly executes your plan.
- Secure Private Areas – To show that certain areas are private, mark them with a “Private” sign, keep the doors closed or locked, and have a policy that visitors and the public cannot enter those areas without permission.
3. What to Do When ICE Arrives
- Public Areas: Anyone, including ICE agents, may enter public areas (e.g., lobbies, dining areas, parking lots) but may not question or detain employees without proper legal authority or your permission.
- Private Areas: If an ICE agent attempts to enter, ask: “Do you have a judicial warrant signed by a judge?” If they do not, politely deny entry until they do.
- During an ICE Raid:
- Stay calm—do not allow employees to run, as this may be misinterpreted as evasion.
- Do not provide employee information unless legally required.
- Do not confirm if the employee listed in a warrant is working.
- Record details of the visit, including ICE agents’ behavior and any rights violations.
Best Practice: If possible, record the event on video to document any potential legal violations.
4. Handling a Form I-9 Audit
ICE provides at least 3 days’ notice before an I-9 audit. Employers should:
- Consult an immigration attorney immediately.
- Do not provide documents before the deadline.
- Notify employees and their union representatives about the audit.
- Allow employees to have a representative present during ICE questioning.
If ICE challenges work authorization, request an extension for employees to provide proof.
5. What to Do After an ICE Raid or Audit
ICE enforcement actions can disrupt businesses and affect employee well-being. After an incident:
- Support affected workers – Offer temporary leave while they resolve work authorization issues.
- Ensure final pay compliance – Pay any wages or benefits owed to employees promptly.
Conclusion
Employers have rights and responsibilities when dealing with DHS and ICE enforcement actions. Being prepared is key to protecting your business and employees. By establishing a clear response plan, training staff, and consulting legal counsel, you can navigate these situations while ensuring compliance with immigration laws.
Need expert guidance on workplace compliance and employee rights? Contact us today for legal support on employment audits and immigration enforcement preparedness.