Employers' Rights: Preparing for an ICE Visit

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As an employer, you may find yourself facing unexpected visits from U.S. Immigration and Customs Enforcement (ICE) agents. These visits can vary in nature and intensity, ranging from routine checks to full-scale raids. Employers need to understand their rights during these visits to protect their businesses, employees, and themselves. In this article, we'll explore the different types of visits from ICE, what triggers these visits, and how employers can handle them to ensure compliance while protecting their interests.

There are primarily two types of visits from ICE that employers should be aware of: ICE raids and Notices of Inspection (NOI).

• ICE Raids: These are surprise enforcement actions where ICE agents storm a workplace, typically with the intent of apprehending individuals suspected of being in the U.S. unlawfully. Raids are often conducted with minimal warning to employers, and ICE may arrest employees during the action.

• Notices of Inspection (NOI): These are less aggressive than raids and involve ICE giving the employer advance notice that they will be inspecting the employer's I-9 forms (employment eligibility verification). The employer is required to produce these documents upon request, and the inspection typically focuses on ensuring that employees are legally authorized to work.

Many employers are caught off guard when ICE shows up at their workplace. They often do not learn the reason for the visit until long afterwards, if ever. There are several common triggers that might lead to ICE involvement.

One significant trigger occurs when a current or former unauthorized employee is caught up in an ICE investigation. If an individual is found to be present in the U.S. without proper documentation, ICE may expand its investigation and look at the employer’s role in failing to verify employment eligibility correctly. Thus, if an employer has recently noticed that certain non-citizen employees are no longer showing up for work, this could signal that they may soon be targeted by ICE for an inspection.

Another trigger for an ICE visit is when an employee applies for family-based immigration benefits, such as a green card, or seeks asylum. During the application process, employees are required to provide information about their employment history. If the employee admits to working without authorization, it implicates the employer in failing to properly confirm work authorization. This can lead to ICE conducting a workplace inspection to determine if the employer is in compliance with employment verification laws.

One key right that employers have during ICE visits is the ability to limit the scope of access to their workplace. ICE agents are not permitted to enter areas that are not considered "public" without a judicial warrant. This means that employers do not have to allow ICE agents to enter private offices, warehouses, or other restricted areas unless the agents present a valid warrant from a judge.

For example, if ICE arrives unannounced and demands to search your office or private work areas, you have the right to ask for a warrant. You can politely ask the agents, “May I please see the warrant authorizing you to search this area?” If the agents cannot provide a valid warrant, you are under no obligation to allow them entry beyond public areas like the lobby or customer-facing sections of your business.

It’s important to note that a judicial warrant is different from an administrative warrant. Administrative warrants are often issued by ICE itself, but these warrants typically do not allow ICE agents to enter restricted areas or make arrests without additional authorization. ICE can issue administrative warrants to obtain documents from employers, including I-9 forms and payroll records, without the need for a judicial warrant. This allows ICE to conduct audits and investigations into employment eligibility violations. In more serious cases, such as suspected criminal activity, ICE can obtain a search warrant from a judge. This warrant would give them broader access to the worksite and permit arrests of individuals suspected of being in the country unlawfully.

During an ICE visit or raid, employers have the right to remain silent. You do not have to speak with ICE agents, answer questions, or sign any documents until you have had a chance to consult with an attorney. It’s a good idea to have an immigration attorney on retainer so that you can quickly seek legal advice during such events.

For instance, if ICE agents present you with a Notice of Inspection or request to inspect employment records, you can say, “I would like to consult with my attorney before proceeding.” This can help you avoid making hasty decisions or agreeing to something that may harm your business in the long run.

Employers also have the right to document ICE's actions during their visit. You can record the agents' activities, but be sure to do so in a manner that does not interfere with the investigation. You may want to use a cellphone or video camera to document interactions with ICE agents. For example, you could discreetly film agents entering your building or interacting with employees.

Additionally, employers should protect their employees’ rights during an ICE visit. Employees have the right to remain silent and can refuse to answer any questions about their immigration status or provide identification to ICE agents. You can remind your employees that they are not obligated to speak to ICE or provide personal information without legal counsel present.

A simple, clear statement that employers can convey to their employees is: “You are under no obligation to answer questions about your immigration status, and you have the right to remain silent.”

Given the complexities surrounding ICE visits, employers should have a clear protocol in place to handle these situations. This protocol should include procedures for handling ICE visits or raids, including how to respond to requests for documentation, how to communicate with ICE agents, and how to protect the rights of employees.

Additionally, it is vital that employers train their staff on what to do in the event of an ICE visit. Ensuring that everyone understands their rights and responsibilities—whether they are an employer, a manager, or an employee—can help mitigate confusion and potential legal issues during an ICE inspection or raid.

Proactive preparation, clear communication, and consultation with an experienced immigration attorney can help employers navigate the complexities of ICE worksite enforcement actions while minimizing the risk to their business and employees.