BEST PRACTICES FOR ICE VISITS

US Customs and Immigration Enforcement (“ICE”) has significantly increased its enforcement activity over the last 60 days.  ICE agents are descending upon workplaces throughout the United States, and particularly in California.  This blog post is intended to provide employers and employees some best practices for handling ICE visits to their workplace.

TIP NO. 1:  Be Prepared

If you prepare for an ICE inspection, then Murphy’s Law provides that you will not be visited.  However, in reality, preparing for an inspection means that you will have all of your paperwork ready and know how to respond to the ICE agents appearing at your workplace.  Prior to any visit (meaning now) you should:

1. Identify a response team: What representatives from the Company will be authorized to respond to and address ICE agents;
2. Develop and distribute an ICE Protocol. What action(s) will the Company take should ICE agents arrive.  Make sure you train receptionists, managers, and supervisors on the ICE Protocol;
3. Conduct internal I-9 audits. Review all I-9s for current and former employees (past 12 months) and make sure they are all complete and you have the supporting documentation identified in the I-9;
4. Place signage establishing non-public work areas versus public work areas;
5. Have your legal counsel on speed dial. Be prepared to contact your attorney should ICE agents come to your workplace.

TIP NO. 2: Understand Differences Between an I-9 Audit, ICE Raid and Documentation Used During Workplace Visits

ICE has different enforcement actions their agents are legally permitted to perform.  ICE can perform I-9 audits or perform judicially authorized searches of the workplace.  An I-9 Audit will commence with a Notice of Inspection (NOI).  The NOI will require a 3-day response window in which you will be obligated to produce all work authorization documentation for your current employees and for your former employees over the last 12 months.  Performing internal I-9 audits will assist you to respond to ICE’s NOI.

An ICE Raid occurs when ICE agents arrive at the workplace and wishes to search it and/or detain potential undocumented workers.  In order for them to search non-public areas of a workplace, ICE agents must have a judicial warrant authorizing the search and/or arrest.  If ICE agents come to your workplace, your response team should ask to review the warrant that authorized the visit.  If the warrant is not executed by a judge from a Federal District Court, then it is an administrative warrant and ICE agents are not permitted to search non-public portions of the workplace.

TIP NO. 3: What to Say – and Not Say When ICE Comes Knocking

Do:

1. Ask for identification and purpose for the visit
2. Request a copy of any warrant or subpoena
3. Contact legal counsel who can interpret the paperwork and address the situation

Don’t:

1. Do not consent to a search
2. Do not speak on behalf of employees
3. Do not try and obstruct the agents from performing their responsibilities

TIP NO. 4: Understand Employee Rights and Protections

Your employees always have the right to remain silent and do not have to disclose their immigration status, Country of origin, or how they entered the US.  In addition, California employees have anti-retaliation protections under California and federal law.