Understanding Employer Rights and Obligations If ICE Comes to Your Workplace: What You Need to Know

Immigration issues have increasingly impacted workplaces. As U.S. Immigration and Customs Enforcement (ICE) worksite inspections are actively ongoing, it is crucial for contractors to understand their rights and responsibilities when ICE arrives. Below is a summary of what contractors should know if their business becomes the focus of a Worksite Inspection or IRS Form I-9 audit. Above all, contractors should consider contacting legal counsel immediately upon learning that ICE is conducting a Worksite Inspection or I-9 audit. If you are contributing to FCA International, you can contact FCA legal counsel by emailing fca@finishingcontractors.org.

Guidelines for an ICE Worksite Inspection

A worksite inspection happens when ICE agents go to a workplace without warning as part of an investigation. ICE agents may come to find a particular person (or people). While they are present, ICE agents may try to question, detain or arrest people.  Employers are always permitted to comply with ICE agents but are only required to comply with agents under specific circumstances. If ICE agents arrive at your business offices, the host or receptionist should immediately contact a designated representative, who should contact legal counsel. The host or receptionist should inform the ICE agents that counsel is being contacted. As discussed below, it is important that the Employer understand whether there is a valid warrant in place if ICE intends to access private areas of the property.

Public Areas

Anyone, including ICE agents, may enter public areas of the business without permission. However, being in a public area does not give ICE the authority to stop, question or arrest just anyone. Workers encountering agents in a public section of the facility have the right to remain silent and to ask for an attorney at all times. Employers may (but are not required to) tell employees that they can choose whether or not to speak with ICE, but employers must not direct employees not to cooperate with ICE.

For purposes of this guidance, public areas extend to jobsites. What this means is that if your employees are on a jobsite that you do not “own,” ICE has broader authority to conduct its operations unless the owner of the property objects.

Private Areas and Private Property

Employers are not required to grant ICE access to private areas of the business or areas of the property that are not open to the public without a valid judicial warrant. A valid judicial warrant will say “U.S. District Court” or a State Court at the top document.

A valid warrant:

  • will be signed by a judicial officer,
  • describes the place to be searched,
  • describes the persons or things to be seized,
  • is dated and has been issued within the past 14 days.

If the warrant is missing one or more of these requirements, it is invalid. For example, if the warrant does not list the facility’s correct address, it is invalid, and officers cannot conduct a search without your permission.

Administrative warrants do not come from a court but rather will say “Department of Homeland Security” and are on Forms I-200 or I-205. An administrative warrant does not allow agents to enter private areas without your permission.

If ICE agents tell you they have a warrant, ask for a copy and read it. Determine the type and validity of the warrant and proceed accordingly.

During a Search

Immigration officers may present a valid search warrant, signed and dated by a judge. This search warrant will include a time frame within which the search must be conducted, a description of the premises to be searched, and a list of items to be searched for and seized (e.g., payroll records, employee identification documents, I-9 forms, SSA correspondence, etc.)

If a search warrant is presented, examine it to ensure that you understand the scope permitted by the warrant itself, and monitor the agents’ activities to ensure they stay within that scope.

Protect attorney-client privileged materials during this search. If agents wish to examine documents designated as attorney-client privileged material (such as this memorandum or other communications to or from counsel), tell them they are privileged and refuse to produce them until you are able to speak to your attorney. If the agents nevertheless seize them, try to make note of exactly which documents were taken by the agent (even through photographs, if possible).

Arrests or Detentions

If ICE presents a valid arrest warrant signed by a judicial officer, you must promptly comply.

However, if ICE shows you an administrative warrant with an employee’s name on it, you may (but are not required to) say if that employee is working that day or not. You are not required to lead ICE agents to the named employee.

If ICE agents try to stop, question, detain, or arrest a worker, the worker is not required to hand over any IDs or papers to ICE. The worker may stay silent and ask for an attorney.

Guidelines for a Form I-9 Audit

When ICE notifies you that there will be a form I-9 audit, it would be important to contact an attorney. You are allowed up to three workdays to produce your I-9 forms. After reviewing the I-9 forms, ICE may find some employees are not authorized to work. If this happens, ICE will give you ten days to provide valid work authorization for these employees. If this happens, you must notify the affected employees.

At all times, you are permitted to speak to your lawyer before answering questions or signing ICE documents.

Conclusion

With immigration enforcement on the rise, contractors should be prepared to respond should ICE agents arrive at your doorstep. You should have a response plan in place and ensure designated personnel know how to respond to ICE agents and who to contact if agents arrive.