In light of the ongoing immigration enforcement actions authorized by President Trump, we have created a checklist offering guidance and recommendations to help you prepare for a potential visit by the U.S. Immigration and Customs Enforcement (ICE) at your workplace.
Steps to Take Prior to an Official ICE Visit
Conduct an Internal Audit of Forms I-9
All employers are subject to Form I-9 audits conducted by ICE to verify compliance with federal immigration laws in their hiring practices. A proactive way to prepare for such an audit is to conduct an internal Form I-9 audit to ensure your forms are complete and accurate. You can follow this link for guidance developed by ICE on this topic.
Designate Your Company Representative
Employers should appoint a Company Representative authorized to make decisions on the company’s behalf during an immigration visit, such as granting ICE agents access to employee records. This representative will also serve as the primary point of contact for ICE agents visiting the workplace. Once designated, employers should ensure that non-designated employees are aware of who the Company Representative is, so they can provide the representative’s contact information to ICE agents.
Designate Public and Non-Public Areas of the Workplace
ICE agents and local law enforcement cannot enter “non-public” areas without a valid judicial warrant (discussed below) or the permission of an authorized representative. Public areas of a workplace or business are those where the general public typically has access, such as lobbies, entry areas, waiting rooms, or parking lots. ICE and Customs and Border Protection (CBP) have the authority to enter public areas, observe anything in plain view, and ask questions about immigration status without warrants.
Employers should carefully determine which areas of the workplace to designate as “non-public.” Consider using physical markers, like signs reading “Private,” and keep doors and other spaces that provide access to confidential employee information locked. Additionally, employers should develop a policy where only a trained Company Representative grants access to non-public areas.
Train Employees on their Rights
Employers should ensure that all employees understand their rights during immigration enforcement actions. Employees should be trained on their right to remain silent and consult with an attorney, even if approached by ICE agents in public areas of the workplace. Employers also should make it clear that employees are not obligated to provide any documentation regarding their immigration status to ICE agents, even if requested.
Steps to Take During an Official ICE Visit
Request the Purpose of the Visit
Upon the arrival of ICE agents, the Company Representative should: 1) inquire about the purpose of their visit, and 2) request the officers’ badge number and names. Employers can expect ICE agents to provide a Notice of Inspection (NOI) to audit the Company’s Forms I-9, present a warrant to search for certain items, and/or present a warrant to arrest certain individual(s). If presented with a NOI, employers have at least three business days to provide the requested Forms I-9. (8 CFR § 274a.2(b)(2)(ii).) Employers should not allow ICE agents access to physical spaces or produce any material immediately upon the NOI being served.
If the visit is based on a warrant, the Company Representative should know the difference between a judicial warrant and an administrative warrant to decide how to proceed with the ICE visit. Judicial warrants provide ICE agents with the authority to search a specific area to seize documents, or other items, or to arrest named individuals. The Company must comply with Judicial warrants only they are signed and dated by a judge, specify a time frame for the search, describe the premises to be searched, and list the items to be searched and seized, such as payroll records, employee ID documents, Forms I-9, or Social Security Administration correspondence, and if the warrant is for an arrest, it must identify by name the list of individuals to be arrested.
In contrast, employers are not required to comply with administrative warrants. If shown an administrative warrant, employers can refuse permission to ICE agents. To verify an administrative warrant, check if it is signed and dated by an ICE official (not a judge), includes “Department of Homeland Security,” and is filled out on Forms I-200 or I-205.
If shown a purported warrant, whether judicial or administrative, employers should request a copy and send it to legal counsel for validation.
Do Not Interfere or Obstruct with the Visit
If presented with a valid judicial warrant, the Company Representative must allow ICE agents to search the specified areas for the listed items. Do not interfere or obstruct the investigation, but object and note any instances where the agents exceed their authority (e.g., searching unspecified areas or items). If comfortable, the Company Representative may videotape the agents to document their visit.
If presented with a valid judicial warrant for an employee’s arrest, the Company Representative must comply by producing the employee. However, with an administrative warrant, the Company Representative should not disclose whether the employee is working or bring the employee to the agent.
Sometimes, ICE agents will delegate certain functions to local law enforcement under ICE’s oversight (see Public Law 104-208). If local law enforcement, without ICE agents, attempts to arrest an employee or search items based on an administrative warrant, you should not provide any information or lead them to the employee. Instead, ask if they have a judicial warrant signed by a judge.
Steps to Take After the Visit
Immediately following the visit, the Company Representative should document the visit by making a record, including the following:
- The number of ICE agents present (inside and outside)
- How the agents were dressed
- Whether they were armed
- Whether the agents made you or your workers believe you could not move or leave
- Whether the agents mistreated anyone, and if so, how
Key Takeaways
Employers should not only understand how to handle an ICE visit but also take proactive steps to ensure future visits go smoothly. It is important to carefully select a Company Representative for such visits and ensure they receive proper training to manage the situation calmly while protecting their employees’ privacy. Lastly, employers should always contact legal counsel immediately to ensure that legal compliance when faced with a warrant or a Notice of Inspection.