Preparing for ICE Worksite Raids

The following article first appeared in the News & Insights section of Carmody Torrance Sandak Hennessey’s website. It is reposted here with permission.

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With the incoming Trump administration, employers can expect a significant increase in the enforcement of immigration compliance, particularly I-9 raids and I-9 audits, come Jan. 20.

Even if you meticulously confirm the work authorization of your employees, Immigration and Customs Enforcement can show up at your door as part of a raid or to investigate your workplace in connection with a lead or complaint, or other factors.

In this part one of a two-part client alert series, our Immigration team will help prepare you so that if ICE makes an unannounced visit, you and your employees are ready.

Tips for Employers

Call your lawyer. The receptionist can tell ICE that the employer’s policy is to call the employer’s lawyer, who may be able to come to the worksite or speak to the ICE officers over the phone.

Search warrant/scope of investigation considerations. Officers can enter public areas of your worksite but need a valid search warrant or your consent to enter non-public areas.

You can accept the warrant but not consent to the search. If you do not consent, the search will proceed but you can later challenge it if you have grounds to do so.

An authorized employer representative should examine the search warrant to check that:

1. It is signed by the court.
2. It is served within the permitted time frame.
3. The search is within the scope stated in the warrant—the area to be searched and the items to be seized.

Send your attorney a copy of the warrant and do not block or interfere with ICE activities or the agents. Exceptions:

• You do not have to give the agents access to non-public areas without a valid search warrant.
• Object to a search outside the warrant’s scope, but do not debate or argue with the agent. Simply present your objection to the agent and make note of it.

Write down the names of the supervising ICE agent and the U.S. attorney assigned to the case. Have an employer representative follow each agent around the facility. They may take notes or videotape the officer.

Note: For items seized, ask if copies can be made before seizure, especially if something is vital to your operation. Reasonable requests are usually granted.

If ICE wants to examine privileged materials (e.g., attorney-client privileged documents), tell them they are privileged and ask that they not be inspected by the agents until you can speak to your attorney. If agents insist on seizing such documents, do not prevent them from doing so.

Ask for a copy of the list of items seized. The agents are required to provide this to you.

Employer representatives should not give statements to ICE or allow themselves to be interrogated before consulting an attorney.

Do not hide or assist employees in leaving premises, provide false or misleading information, or falsely deny the presence of named employees, or shred documents.

Employees have the right to remain silent and the right to an attorney. You can inform employees that they may choose whether to talk to ICE, but do not direct them to refuse to speak to ICE.

Your employees have the right to remain silent and do not need to answer any questions.

An employee may refuse to show identity documents that disclose their country of nationality or citizenship.

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About the authors: Lauren Hopwood is a partner with Carmody Torrance Sandak Hennessey and leads the firm’s Immigration practice. Johanna Bachmair is an associate in Carmody’s Corporate & Business group and a member of the Immigration practice.