How Employers Can Prepare for an ICE Visit

Victoria Gentry is the Managing Attorney of The Immigration Group, P.C. She counsels clients of all sizes, from startups to Fortune 100 companies, in on business-related immigration matters in the IT, Engineering, Finance, Pharmacy, and Insurance industries.

In the current political climate, all employers from Fortune 100 companies to start-ups should know how to prepare for a visit from U.S. Immigration and Customs Enforcement (“ICE”). From April 2018 to August 2019, ICE worksite raids increased in frequency and in number of arrests over time,1 with one of the largest ICE raids in U.S. history occurring in Grainger County, Tennessee. Some of the raids were so significant that Congressional delegations visited the locations of these raids to inspect their impact and aftermath on local businesses and communities.2 Moreover, the form I-9 employment eligibility verification process changed in 2023 as to how it relates to verification of remote employees, which can lead to costly fines for even the most whitecollar employers. With immigration law sitting at the forefront of the upcoming November 2024 presidential election, employers should be equipped with a baseline knowledge of the two types of ICE worksite visits.

Type 1: ICE Raid

ICE raids occur when ICE agents visit a worksite without warning as part of investigating an employer. These investigations are more likely to have ICE officials with uniforms saying “Police” or “Federal Agent.” They may carry guns.

Sometimes local police officers go with ICE agents on ICE raids.3 There are two lawful models of how local police can accompany ICE agents, including the “jail enforcement” model and the “warrant service officer” model. When using the jail enforcement model, deputized officers may attempt to question noncitizens who have been arrested on state or local charges regarding their immigration status and may place immigration detainers on those thought to be subject to removal. When using the warrant service officer (WSO) model, ICE certifies state and local law enforcement officers to execute ICE administrative warrants. Because they are certified by ICE, these officers are permitted to perform the arrest functions of an immigration officer within the law enforcement agency’s jails and/or correctional facilities. The WSO model does not authorize local law enforcement officers to interrogate alleged noncitizens about their immigration status.4

To prepare for the possibility of an ICE raid, employers should know the rights of the business and the rights of its employees. ICE officials are not permitted to enter a private area of a business unless they have permission from a company representative to enter or a valid judicial search or arrest warrant signed by a judge.5 ICE agents rarely have judicial warrants. A judicial warrant must say “U.S. District Court” or a state court at the top.

All employees should know the plan before the ICE visit occurs, and employers should select a point person to speak with ICE agents. No one else should speak with them. All employees should know the phrase, “I can’t give you permission to enter. You must talk to my employer.” This sentence should be followed by silence. The point person should ask whether the visit is an ICE raid or an I-9 audit and ask if the agents have a judicial warrant. If the ICE agents claim to have a warrant, the point person should make a copy and analyze the warrant to see if it is signed by a judge from a Federal or state court. Sometimes, ICE agents try to use an administrative warrant to enter. But an administrative warrant does not allow agents to enter private areas without the company’s permission.6 Administrative warrants are not from a court but are merely forms from Department of Homeland Security.7 If the warrant is not from a Federal or state court and signed by a judge, the employer can tell the ICE agents to leave the premises.

If the employer decides that the warrant is from a state or Federal judge, ICE will enter the premises. The employer may request that ICE provide proof of identity including names/ID badges. The employer may write down the name and employee numbers of the ICE agents and may request a photocopy of the official’s ID card or badge. ICE agents during ICE raids are usually looking for a particular person or people. There may have been a report from an individual providing a “tip” to ICE that persons without work authorization or lawful status are employed at this worksite. The ICE officials may try to speak with present individuals, ask questions, and, occasionally, arrest individuals. The point person should review the warrant to make sure that the officials are only searching for the limited items/ persons mentioned in the warrant. Employers are not required to “help” ICE agents perform their job during a raid. Employers do not have to help ICE sort individuals by ethnicity or country of birth. It is acceptable to film or record the encounter on a phone or other device. When an ICE agent speaks to an individual, the individual best protects their rights by responding only with, “I need to speak with my attorney.” If the official arrests any workers, the employer should ask where they are being taken and for any contact information about the location (whether it is a jail or immigration authority, etc.).

Type 2: Form I-9 Audit

A Form I-9 audit is when ICE agents come to a business to see if the business followed the rules for Form I-9. Form I-9 confirms a worker’s identity and authorization to work in the U.S.8

An I-9 Audit varies greatly from an ICE raid. A warrant is not required for an I-9 audit. During the initial worksite visit, ICE agents will issue a Notice of Inspection three days before the official audit will take place. The Notice of Inspection will require the employer to send the requested items to a certain location or have the ICE agent review them at the worksite. If a Notice of Inspection is given, it should be given immediately to the company’s designated point person to begin preparing the request.

When the ICE agents return in three days, the employer may request that ICE provide proof of identity including names/ID badges. The employer may write down the name and employee numbers of the ICE agents and may request a photocopy of the official’s ID card or badge. The employer should request a written notice explaining the next steps and how to follow up with the authorities, including names, phone numbers and emails.

Once the ICE agents have reviewed the I-9 documents and, if they determine that there may be I-9 violations, the employer may face civil and criminal penalties and fines.9 ICE may find that some employees are not authorized to work and, if so, ICE will give the employer ten days to provide valid work authorization for these employees. The employer may ask ICE for more time to comply with the request. If the employer can’t provide the documents by that time, the employer will be told to end their employment or face fines by continuing to employ them.10 The employer must notify these employees right away.

No matter what the upcoming presidential election holds, employers who want to prepare for a visit from ICE should speak with an experienced immigration attorney and make a plan for how to handle these visits. n

Footnotes

1 See National Immigration Law Center, Worksite Immigration Raids, January 2020, https://www.nilc.org/ issues/workersrights/worksite-raids/

2 Immigration Raids: Impacts and Aftermath on Mississippi Communities, House Committee Meeting, House Homeland Security Committee, 116 Congress, 2019.

3 8 U.S. Code § 12(287)(g)

4 Id.

5 ICE Enforcement and Removal Operations, Fugitive Operations Handbook, July 23, 2010.

6 Id.

7 See https://www.ice.gov/ sites/default/files/documents/ Document/2017/I-200_SAMPLE.PDF

8 8 CFR § 274a.2

9 8 U.S.C. § 1324a(a)(1)

10 8 U.S.C. § 1324a(a)(1)-(2)