A day after being sworn into office as president, Donald Trump began to issue executive orders aimed at implementing his campaign promise to take decisive actions on immigration enforcement. One major change is the administration’s rescission of a longstanding policy that limited federal immigration enforcement activities in particularly sensitive locations, such as churches, schools, and hospitals. 

With immigration enforcement concerns increasingly likely to impact your workplace, here is a summary of key points that business owners should know to prepare for the possibility of a workplace raid or audit by U.S. Immigration and Customs Enforcement (ICE) agents. This guide will help you to interact appropriately with ICE officials if the situation arises and to stay in compliance with the law.

What does an ICE Visit mean for Employers?

ICE enforcement actions at workplaces can occur for several reasons. Here’s what to expect:

Workplace Raids: ICE agents may arrive unannounced as part of an investigation into an employer or to locate specific individuals.

Site Visits: ICE may conduct a routine compliance check on employers hiring H-1B visa holders.

I-9 Audits: ICE reviews Employment Eligibility Verification Forms (Form I-9) to confirm workers’ legal status. Employers receive a Notice of Inspection requiring them to provide I-9 forms within three business days. ICE can conduct an I-9 audit without prior notice.

How Should Employers Respond to an ICE Visit?

Public Areas of Your Business

ICE agents may enter public areas without permission—just like customers. However, this does not give them automatic authority to question, detain, or arrest individuals.

Key Takeaway: Employees have the right to remain silent and request legal representation.

Private Areas of Your Business

ICE agents cannot enter nonpublic areas without a valid judicial warrant.

What is a Judicial Warrant?

A judicial warrant is issued by a federal or state court and must specify who or what is being searched. Without this warrant, ICE agents cannot enter private areas unless granted permission. Employers should consider clearly designating any entrance and access point of your business as “private areas,” if the public is not allowed to access them freely without express employer permission.

What is an Administrative Warrant?

Instead of a judicial warrant, ICE enforcement agents sometimes show up with an “administrative warrant”, i.e., one that is not issued from a court, or signed by a judicial officer, but is instead issued by the U.S. Department of Homeland Security, for example. An administrative warrant does not entitle ICE enforcement agents to enter the private areas of your business, without your permission.

While an administrative warrant does not impose any legal duties on a business to comply with the demands of ICE agents, it is generally a best practice for employers to try to be courteous and never hinder a valid investigation. The employer should immediately contact their legal counsel if there is any doubt about whether a warrant produced by ICE agents is a judicial warrant or an administrative warrant or whether the warrant is valid.

How Employers Can Prepare for an ICE Visit

Develop a Workplace Action Plan

Designate a supervisor who understands your legal rights in the event that ICE agents do come to your workplace. Ideally this would be an individual who is familiar with the game plan you develop for your business and who is likely to be available in the event of an ICE visit. 

Ensure front-desk staff and employees know how to handle ICE visits. They should:

• Notify the designated point person immediately.
• Stay calm and follow company protocols.
• Avoid providing unnecessary information.

Take the time to determine and designate what areas of your workplace have been traditionally open to the public. All other areas of the property that require permission or identification to enter should be designated as private areas.

Review your Business’s Compliance with I-9 and Visa Status Requirements

• Employers should check that there is a fully completed I-9 form on file for all current employees who perform work for you in the U.S. Employers should also consider obtaining an I-9 form for any current employee who is missing an I-9. Once an I-9 form is in place for each current employee, employers should undertake an audit of all I-9s to determine whether each is in keeping with all USCIS requirements. Undertaking an internal audit also evidences your good faith intention to comply with all I-9 requirements, in the event of an ICE audit.
• Similarly, review all documentation related to work visas, job duties, wages, and employment terms to be sure it is well-organized and readily available for review during an ICE site visit. And, as with an ICE raid, be sure that your front-line employees know to notify your point of contact if ICE arrives for a site visit.

Conclusion

With heightened immigration enforcement under the Trump administration, employers must be proactive to protect their business. Having a clear strategy in place can help you respond effectively if ICE agents arrive.

For assistance in navigating the complexities of immigration enforcement or I-9 compliance requirements or for questions with your business’s policies and practices, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.