The U.S. Immigration and Customs Enforcement, commonly referred to as “ICE,” is a law enforcement agency under the Department of Homeland Security and is responsible for the enforcement of immigration laws in the United States. As part of the enforcement responsibilities, ICE prosecutes those who are in violation of the U.S. immigration laws and if these individuals are found to have violated the U.S. immigration laws, ICE ensures that these individuals depart the United States. One tactic used by ICE to locate and detain illegal immigrants is to conduct raids at places of businesses suspected to employ illegal immigrants or raids at a location where ICE believes an illegal immigrant will be (e.g. the workplace). Another tactic is to conduct a Form I-9 audit at a place of business and use the audit to confirm a worker’s identity and authorization to work in the U.S.
What Are the Employer’s Rights During an Immigration Raid or A Form I-9 Audit?
For a Form I-9 audit, ICE must give the employer notice of the planned inspection of the Form I-9s prior to visiting the place of business. ICE sends a Notice of Inspection letter to the employer, giving them at least 3 days, as required by law, to prepare for the visit. Without previously receiving a Notice of Inspection or other court order, the employer does not have to provide ICE with the opportunity to inspect the Form I-9s. If provided with a Notice of Inspection, it is best to comply with ICE’s request and provide the requested documents in the Notice of Inspection.
When conducting a raid, ICE does not need to provide the employer with any prior notice. However, the same rules for any other criminal investigation of private property apply. In order for ICE to enter the private areas of a business, it is required to have a warrant signed by U.S. District Court judge or State Court judge. Without a warrant, ICE needs consent to enter the private areas of the business. It is the employer’s right to refuse consent in those situations where it is required and the employer can instruct its employees not to provide consent, as well. The best thing to do in an ICE raid is to be prepared and make sure all employees are prepared for one as well.
How Does an Employer Prepare for An ICE Raid?
First, it is important for the employer to put a written plan in place that outlines what needs to be done and what can legally be done when ICE shows up. Once the plan is in place, it is important to practice the plan, making sure that everyone knows exactly what they are supposed to do during a raid. Second, the employer should conduct training sessions with its employees to educate them on how they should not interact with ICE agents.
Here are some helpful tips for before, during and after an ICE raid:
- Keep the doors to the private areas of the business closed or locked (preferably locked).
- Post “Private” signs on doors and walls to clearly mark the private areas of the business as private.
- ICE will always have the ability to enter the public areas of your business, such as a parking lot, lobby or waiting area.
- A job site is generally not considered a public area.
- Post a clear policy in the public areas of the business right outside the pathways to the private areas that visitors and the public cannot enter without permission.
- Always ask for a judicial warrant before letting ICE into the private areas of the business and make sure to read it to confirm that it is signed by U.S. District Court judge or a State Court judge.
- If ICE has a judicial warrant, make sure they follow the terms of the warrant (e.g. the warrant may specify only a certain location they may conduct their search) and note any deviations.
- If ICE has only an administrative warrant looking for an employee, the employer does not have to say if that employee is working and it does not have to take ICE to that employee.
- Make sure the workers know that they have the right to remain silent and can and should ask for an attorney if questioned by ICE. Additionally, the workers should not sign anything given to them by ICE without first consulting with an attorney.
- Train the employees to refer all ICE inquiries to the person designated to handle ICE that the employer wants interacting with ICE.
While ICE raids can be a burden and an unpleasant experience, the reality of the situation is that they are not going away any time soon. U.S. law states that an employee must have legal status in the United States and must have legal authorization to work in the United States. As the enforcer of U.S. immigration law, ICE will utilize raids to find those violating those laws. Therefore, it is important to be prepared for an ICE raid to minimize the intrusion and disruption to the employer’s business.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
Attorney Paul Messina focuses his practice on employment-based, investor-based and family-based immigration law. Cotney Construction Law is an advocate for the roofing industry, General Counsel of FRSA, NWIR, RT3, TARC, TRI, PBCRSMA, WCRCA, WSRCA, and several other local roofing associations. For more information, contact the author at 866.303.5868 or go to www.cotneycl.com.