We have received numerous inquiries from clients with concerns about President Trump’s declaration that the U.S. Immigration and Customs Enforcement (ICE) will be aggressively investigating workplaces where undocumented workers are employed. Employees are asking for reassurances from their employers about safety, and clients are asking what they can do to prepare for an ICE raid.

Understanding the Purpose and Triggers of an ICE Raid
The purpose of an ICE raid is to locate and detain undocumented workers. Typically, an ICE raid would follow either a complaint or a reasonable suspicion that the employer is employing undocumented workers. Often this suspicion is based on a previous ICE audit of the employer’s completion of Form I-9s. As a result of the audit, ICE suspects that the employer’s noncompliance with Form I-9s means the employer may employ undocumented workers.

ICE Agents Need Search Warrant to Enter Private Spaces
ICE agents are allowed to enter public spaces without a search warrant. They are only allowed to enter non-public areas with a search warrant. If a search warrant is presented to the employer, the employer must allow the ICE agent(s) to enter the areas designated in the search warrant. The search warrant may also designate certain documents which are to be seized. These documents can be personnel files and Form I-9s, but they could also include payroll records.

Steps to Follow if an ICE Raid Should Occur

1. Monitor ICE Agents
   An employee should accompany the ICE agents as they walk through the worksite.
    
2. Verify Warrant Scope
   If an agent requests documents which are not listed in the search warrant, the employee should respectfully inform the agent that they are not entitled to review that document. 
    
3. Limit Access
   If an agent seeks to enter nonpublic areas without a search warrant, or areas not listed in the search warrant, the employee should politely resist this effort. 
    
4. Avoid Interference
   At no time should the employee block or physically interfere with an ICE agent.
    
5. Document Everything
   Careful notes should be taken of the specific areas which the agent visits, and what was taken.
    
6. Limit Communication
   Employees are not required to answer questions: they can either refuse to answer or ask agents to direct questions to the designated employer representative.

Steps to Prepare for a Possible ICE Raid

ICE usually does not give advance notice of ICE raids so they are almost always a surprise. 

1. Train Your Staff
   Determine which employee will be the first to interact with ICE agents who visit the facility. This could be the receptionist. Train that individual as to which employer representatives must be contacted, how to respond when an ICE agent first enters the worksite and which employer representative will accompany the ICE agent(s).
    
2. Audit and Update Employee Records
   Conduct an audit of personnel files of all current employees and employees employed in the past three years. If a Form I-9 is missing for a current employee, contact that employee and complete the Form I-9. If an employee’s visa has expired, contact the employee and request a visa renewal. The Form I-9 should be updated with this new information. By proactively remedying any lapses in the completion of Form I-9s the employer is reducing the likelihood that ICE will have reason to visit the site.
    
3. Verify Employee Documentation
   Learn how to authenticate the documents an employee furnishes in connection with the Form I-9.  The US Citizenship and Immigration Services (USCIS) has published a handbook for employers that provides guidance on the proper way to complete Form I-9s, what types of documents are acceptable and other issues regarding completion of the Form I-9s. Find the handbook here: https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274
    
4. Review E-Verify Compliance
   If you use E-Verify, review previous E-Verify submissions, and if a submission is missing, submit that employee to E-Verify.
    
5. Advise Employees to Bring ID to Work
   Employers should consider recommending to all employees that they bring identification to work, including visas and even passports, when applicable. There have been stories about ICE agents detaining employees who are U.S. citizens, possibly because of their race or national origin.

Many employees are looking to their employer to support and protect them. However, employers cannot give legal advice to employees about immigration status. If the employer wishes to provide assistance to employees who are concerned about being swept up in a raid, the employer, can provide brochures and pamphlets regarding immigrant rights that can be obtained from local or federal immigrant support organizations.

We expect an increased number of ICE audits and raids. Employers can avoid problems if and when ICE shows up if they designate and educate employees how to greet and deal with an ICE agent. Employers can also go a long way by proactively reviewing their personnel files to confirm compliance or remedy any noncompliance in the completion of Form I-9s.

If you have any questions or would like help finding additional resources, please reach out to me at pkarasov@larkinhoffman.