ICE, ICE… maybe: Know your rights when ICE arrives at your workplace
During the first Trump administration, employers saw increased activity by U.S. Immigration and Customs Enforcement (ICE) in the workplace, and it looks like employers will see similar action over the next four years. The president-elect has promised to resume and intensify deportation efforts when he returns to office. That announcement has sparked a wide range of reactions from staunch support to vehement opposition. The stated plan focuses on increasing the number of deportations, particularly targeting undocumented immigrants with criminal backgrounds.
Recently, the president-elect announced that Tom Homan, who served as the acting director of ICE during his last administration, will be in charge of the nation’s borders and hold overall responsibility for deporting undocumented workers. While we don’t yet know what the final plan will be or how it will be implemented, employers can be certain to see an uptick in ICE visits to their workplaces. Here’s what you need to know.
Lowdown
When ICE agents arrive at a workplace unannounced, it can be stressful for both employers and employees. Regardless of what your position is on deportation, it’s important to understand your rights and obligations when ICE arrives to ensure the situation is handled legally and ethically. And to make sure you stay out of trouble.
Despite what many may think, immigration agents cannot arrest you and throw you in jail if you don’t answer their questions on demand and do exactly what they say. When you have nothing to hide and know what you can and can’t do, a display of hysterics in front of the ICE agent isn’t going to result in anything other than your coworkers making fun of you at future employee gatherings for the rest of your time at the company.
According to some sources, information helps reduce anxiety associated with the unknown, so here’s some information that may help keep you calm in the event that ICE arrives at your workplace.
We’re here
Immigration agents may go to a workplace to conduct a Form I-9 audit, a raid, or to detain specific people. ICE doesn’t always ring the bell before entering. ICE can enter the public areas of your business, such as your lobby, without your official permission. Still, ICE doesn’t have the authority to stop, question, or arrest just anyone simply because they are in a public area.
For access to the private areas of your business, ICE needs either your permission or a judicial warrant. A judicial warrant is from a court and is signed by a judge.
Don’t be fooled by an administrative warrant. An administrative warrant usually says, “Department of Homeland Security,” and it doesn’t give ICE the right to enter private areas of your business without your permission. Don’t get confused or be tricked: You do not have to allow ICE to enter any private area without a judicial warrant even if they act like they have authority to go wherever they want. Even if ICE does have a judicial warrant, it only gives them authority to enter into the areas identified on the warrant to be searched.
Where’s employee X?
If ICE has an administrative warrant identifying an employee, there are two things you do not have to do:
- You don’t have to bring the agent to the employee; and
- You don’t even have to let the agent know if the employee is working that day.
Right to remain silent and other rights
HR personnel, the company president, and all other employees can ask to speak to a specific attorney or ask the immigration officer for a list of pro bono lawyers before speaking to immigration authorities or answering any questions. In fact, everyone can just stay silent if they want. No one has to state where they were born or whether they are in the United States legally.
Employees also do not have to sign anything or gather in groups according to country of origin. If an employee is asked to do so, they can simply walk to an area where no one is being grouped. Additionally, employees don’t have to show identification or other papers to ICE agents. If ICE agents arrest anyone, ask where they are being taken so the employee’s lawyer and family can locate the worker.
I-9 audit
Over the years, ICE’s enforcement actions have continued to include extensive I-9 audits. As a result, it’s important you conduct a self-audit and have no concerns about what ICE agents might find if they show up.
If you are facing an audit of your I-9s by ICE, however, there’s a few things you should know. First, you don’t have to and should not turn over your documents immediately. You have three days from receiving a request to provide your Form I-9s for audit. Second, you should contact an immigration attorney before providing anything to ICE. The attorney may do a quick review of your I-9s with you to ensure they are compliant. Third, you should notify employees and their union representative (if any) about the audit as soon as possible.
After the visit
During the immigration agents’ visit, make sure you write down the agents’ names and what happened. After the visit, fill in any blanks in your notes and contact an immigration attorney for guidance on the next steps.
If immigration agents acted inappropriately, ask witnesses to provide written statements. And, of course, if ICE notified you of any violations, correct them immediately. Lastly, keep in mind that the rules and standards may change once the new administration gets to work.
Training and preparedness
If you want to provide information to your employees regarding these topics, it may be worth your while to contact your employment lawyer to conduct “Know Your Rights” training sessions for employees. Training sessions usually cover what to do if ICE comes to the workplace, how to interact with ICE agents, and the rights of both employers and employees, among other things.
