U.S. Immigration and Customs Enforcement (ICE) conducted fewer deportations and immigration arrests in 2021 than in 2020, according to ICE’s annual report. But even though the Biden administration banned workplace immigration raids in the fall of 2021, business owners should know such visits are truly never out of the question. Before ICE comes knocking on your company’s door, learn how to be prepared for a raid.
When it comes to ICE raids, you want to balance compliance with protecting your employees’ rights. Here’s how to prepare for an ICE raid on your business and what to do if immigration officials come to your workplace.
The most important step to protect immigrant employees (or if you’re an immigrant entrepreneur yourself) involves I-9 forms, which are used to verify a person’s identity and employment eligibility. You must complete and store this form each time you hire a worker because it proves they are authorized to work in the U.S., whether or not they’re a citizen.
“Form I-9 is used to verify the identity and ability of people to work in the United States,” said Rob Wilson, an employment trends expert and the president of Employco USA. “Staff should receive training to learn how to legally complete the form, inspect the person’s documents – e.g., driver’s license – and answer employee questions.”
You must obtain I-9 forms from all your employees, regardless of their immigration or citizenship status.
Have an outside pair of eyes confidentially inspect personnel data as part of your company’s regular maintenance of employee records. Business owners should periodically coordinate I-9 self-audits conducted by a neutral and knowledgeable employee or third party.
“These audits will surface deficiencies with the actual Forms I-9 or the process itself,” Wilson said. “If problems are discovered, the staff may need additional training.”
Compare employees’ I-9 forms with their payroll information, ensuring hard copies are maintained in a separate file from employees’ personnel files, and correcting or replacing the forms if necessary. [The best payroll software can help with personnel management and keep employees’ data secure.]
Devise a step-by-step plan on how your staff should respond if ICE agents arrive, especially if you aren’t on the premises. Revise this plan each year to ensure it still fits the dynamics of your business. Tailor the plan to each of your company’s locations.
ICE generally arrives unannounced. To limit the disruption, appoint specific staff members in advance to be the business’s designated point of contact with ICE agents in the event of a raid. These employees should escort the officers to a location where they can be comfortable without interfering with staff or customers.
If ICE arrives with an arrest warrant, immigration counsel should be contacted immediately. You should also notify your human resources and legal departments, if your company has them. If you outsource your HR, contact your provider. Please note that online legal services won’t be much help here, as you’ll want to have official legal counsel in this situation. That said, your employees have the right to an attorney.
An ICE visit doesn’t give agents blanket permission to do as they please. For example, administrative warrants do not give ICE permission to enter a place where a person has a reasonable expectation of privacy, but that doesn’t necessarily cover places of employment.
If the visit is to conduct an I-9 audit or investigation, be sure to ask for a subpoena. Without a subpoena, you have the right not to turn over any records. Similarly, ICE agents don’t have free rein to go wherever they please on your premises without a warrant. They also can’t speak to your employees without a warrant.
“Everyone, from the receptionist to the HR personnel to the CEO, should be ready for possible scenarios where ICE presents a criminal search warrant, administrative arrest warrant or inspection notice,” Wilson said. “In some circumstances, the company can deny ICE immediate access to their private property and Forms I-9.”
Although the idea of an ICE raid can be scary, the agency may have relatively limited powers during a raid. ICE agents need a warrant that gives them access to private spaces to explore your premises or speak to your employees.
If ICE does present a warrant, it could be an administrative warrant, which the U.S. Department of Homeland Security issues. This warrant permits ICE access to public spaces only, where they can do and search whatever they wish. In this context, public spaces include storefronts, lobbies, restaurants and parking lots. However, it excludes pretty much anywhere you’d put up an “employees only” sign.
Alternatively, ICE could hand you a judicial warrant. This warrant, which a U.S. district court or state court judge issues, can grant ICE access to private areas at your place of business. Either way, if ICE hands you a warrant without the appropriate signatures, it may be invalid and unenforceable.
A warrant can also be invalid if it doesn’t state a time frame for ICE’s search and list searchable locations on your premises. A valid warrant should also include details on which types of business records ICE is there to find or seize.
Many neighborhoods have taken steps to protect undocumented community members against ICE raids. For example, the immigrant rights organization Juntos creates “Community Resistance Zones” to teach residents who don’t want their neighbors (or themselves and their families) deported how to respond when ICE knocks. Business owners can use this training to prep their employees on what to do in case of inspections and raids.
Proactively contact local legal organizations and immigrants’ rights groups. They are likely to have helpful literature, community connections and information on recent raids in your area. You can even team up with neighboring businesses to develop a unified response plan. [Learn more ways your business can benefit from getting involved in your community.]
Even the employee you designate to be ICE’s point of contact doesn’t have to comply with every request during a raid. In fact, you’re best off telling the employee to say nothing to the agents beyond directing them somewhere away from customers and other employees. Alternatively, you can train the staffer to tell ICE agents that they must speak to you and only you.
If you or your designated point person do interact with ICE agents, you aren’t obligated to tell them whether certain employees are, or will be, at your workplace that day. You also aren’t obligated to bring the agents to any employees – even those named in a warrant – or detail any employee’s immigration status. Should ICE agents ultimately arrest anyone, ask the agents where they’re taking the employee, and then alert the employee’s emergency contacts and family.
Regularly remind your team that they never have to show ID or documentation of any sort. All employees can stay silent and demand a lawyer. That last tip might be the most crucial of them all: Avoiding self-incrimination and seeking the help of a great immigration lawyer are the best protections against the potential consequences of workplace raids.
If ICE raids your business, there could be short- and long-term effects on your workplace. No customer will want to complete their purchase if they’re suddenly interrupted by the arrival of immigration officials, and they may even be deterred from coming back. The experience may be traumatizing for employees as well, even those who are American citizens. If the raid sparks media coverage, your company’s reputation could suffer. But while an ICE raid may be unavoidable, you can mitigate the situation by adequately preparing for such an event and responding appropriately during the visit.
Adryan Corcione contributed to the writing and reporting in this article. Source interviews were conducted for a previous version of this article.