ICE workplace visits, whether scheduled audits or unannounced raids, can be stressful and require careful management. As workplace immigration enforcement evolves, managers and HR professionals must be prepared to respond to these situations effectively. This article provides an overview of strategies to help you navigate ICE visits, protect your organization and employees, and maintain compliance with immigration law.

President Trump has revealed his administration’s plans to heighten workplace enforcement, specifically targeting industries known for employing large numbers of immigrant workers. Recent enforcement actions have highlighted the importance of employers understanding their rights and responsibilities. 

Federal Agencies:

There are several federal agencies involved in immigration enforcement, and each agency has distinct roles:

  1. Immigration and Customs Enforcement (ICE): This is the primary agency for enforcing immigration laws. ICE agents are not police officers, though their gear or clothing may sometimes say “Police” and they may carry firearms. ICE has two types of enforcement actions: scheduled audits, and unannounced raids.
  2. Homeland Security Investigations (HSI): This agency is responsible for collecting and inspecting employers’ I-9 forms and related documents and ensuring compliance.
  3. U.S. Citizenship and Immigration Services (USCIS): This agency is responsible for conducting audits related to employment-based immigration sponsorship.

Audits

ICE begins an audit by delivering a Notice of Inspection. A business has three business days to respond and provide the requested information. During an audit, ICE typically asks a business to provide:

  • I-9 forms for current and recently terminated employees
  • Current employee lists
  • Payroll records
  • Quarterly wage and hour reports
  • Business information, such as the owner’s SSN

Raids

Raids are unannounced visits by ICE agents. Raids are performed without advance notice, and a business must immediately respond. ICE will perform a raid when they have probable cause to believe immigration violations are occurring, and must be performed with a judicial search warrant.

Under the Fourth Amendment of the U.S. Constitution, law enforcement must have a valid judicial warrant to enter private areas of businesses, as it protects against unreasonable searches and seizures.

As an employer, you have rights during an ICE raid:

  1. Right to see a signed warrant: ICE agents cannot enter private areas of your workplace without either (a) a valid, signed judicial warrant or (b) your consent. Note that administrative warrants do not grant the authority to enter private areas of your workplace; it must be a signed judicial warrant. Private areas are any non-public areas of your workplace, including locked offices, storage rooms, or employee break rooms.
  2. Right to remain silent: both employers and employees have the constitutional right to remain silent, and are not required to answer questions about immigration status. This means that you and your employees do not have to answer questions about whether a particular employee is present and working that day, employees’ immigration status, where they were born, how they entered the United States, or move when directed to stand in groups according to status.
  3. Right to legal representation: anyone who is detained has the right to an attorney, however, unlike when being arrested by police, the government is not required to provide an attorney to the person who is detained. 
  4. Right to refuse unauthorized searches: you can refuse any search of private areas of your workplace that does not have a valid (signed) judicial warrant, that goes beyond the scope of the warrant, or that lacks probable cause.

What to do during an ICE raid:

  • Ask to review the warrant immediately. Raids are unannounced and can be disruptive, but it is important to stay calm and remain professional. You must first ensure that the warrant is a judicial warrant (not an administrative warrant) and that it has been signed by a judge. Confirm that the warrant lists your company’s legal name and address and that the information is correct. Review the warrant’s scope and limitations. Send a copy of the warrant to your legal counsel immediately. 
  • Request (politely) the ICE agents’ official credentials, and take note of their names and badge numbers, and note the name of the U.S. attorney assigned to the case.
  • Contact your legal counsel immediately. You do not have to answer any questions until your attorney is present.
  • Designate an employee to accompany ICE agents and handle communications with ICE. That employee may videotape the officer.
  • Company representatives should not give any statements to ICE agents or allow themselves to be interrogated before consulting with an attorney.
  • You may inform your employees that they have the right to remain silent, but you should not direct them to refuse to speak to agents or remain silent.
  • Monitor the search, and do not consent to any search that goes beyond the warrant’s scope. Ensure that ICE agents only access the areas or materials that are explicitly mentioned in the warrant. 
    • Note: if ICE agents are reviewing any attorney-client privileged materials, you may tell them that they are viewing privileged materials and you may ask them to label any privileged documents they seize, as ‘privileged.’ You cannot prevent them from taking privileged materials.
  • Ask if copies can be made of any items ICE is seizing, before they are taken. If ICE does not agree, you can obtain copies later. If ICE agents insist on seizing something that is vital to your operation, explain why it is vital and ask for permission to copy it before the original is seized. Reasonable requests are usually granted.
  • Take detailed notes of the search process. Note which employees were present during the raid; record which areas were searched; keep a log of times, dates, and content of interactions with ICE agents; and note any items or documents that are seized by ICE. If you have security camera footage or other recordings of the raid, make backup copies and store them in a secure location.
  • Ask for a copy of the list of items seized during the search. ICE is required to provide this inventory to you.