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How to respond to ICE in the workplace.

I represent employers across a range of industries: automotive, insurance, professional services, and secondary education, just to name a few. My clients’ owners come from an equally diverse background and run the gamut of political perspectives. Like most things in America today, immigration and immigration enforcement polarize debate. Whatever their background, however, most employers agree on this: they want the workplace to be safe, legally compliant, and out of the news. With those goals in mind, how can employers prepare for an unannounced visit from Immigration and Customs Enforcement (ICE) officers?

When ICE arrives at a work site, it typically seeks one of three things: inspection of I-9 records; interrogation of a potential witness or person of interest; or an enforcement action (in common parlance, a “raid”). The level of legal authorization required depends on the particular purpose of the visit.

If an ICE agent notifies an employer that it seeks to inspect the employer’s I-9 records, the employer is permitted three days to respond. That administrative inspection notice is different from a judicial warrant and does not require on-the-spot production of records. For this reason, personnel should be trained to gather contact information only. They should not allow for immediate on-site inspection of those records. Instead, the matter should be referred to Human Resources and to legal counsel to ensure a timely, appropriate response. (As an aside: if you are not certain that your I-9 collection and retention practices are up to date, you should address that issue now.)

If ICE seeks to speak with a particular employee, the employer’s rights and responsibilities depend on “where” and “who.” First the where: most workplaces are private property. ICE cannot enter private or restricted areas without a judicial warrant. An officer can remain in the parking lot or a lobby if that space is generally open to the public. He or she cannot proceed to someone’s office or the shop floor without a judicial warrant. Second the who: if ICE wants to interview someone in management on behalf of the company, the employer retains the right to determine whether, when, and who that will be. If an ICE agent approaches an hourly worker in the parking lot following a shift change, the worker is free to speak (or not), and the employer has no basis to intervene. Employers should train frontline staff (e.g., receptionists, security guards, etc.) to ask for proper identification and authorization and to involve Human Resources or legal promptly.

In the case of an ICE raid, a company must decide whether to provide voluntary access to its workplace or to insist upon a valid judicial warrant. Again, frontline staff should immediately involve Human Resources or senior management, who in turn will seek legal support. Staff should remain polite and professional but as firm as possible in confirming the legal grounds for the inspection before allowing access to private space.

Most employers will never face an ICE visit. But those who do will benefit from planning in advance. The practical preparation is straightforward: train frontline staff, identify internal points of contact, and know when to call counsel.