Employer’s Guide to ICE Audits and Workplace Visits

Recent developments in immigration enforcement have highlighted the importance of employer preparedness for potential interactions with U.S. Immigration and Customs Enforcement (ICE). This informational guide discusses general considerations for employers regarding ICE visits and audits. While each situation is unique and may require specific legal guidance, understanding these basic concepts can help employers develop appropriate protocols.

Understanding ICE Interactions

ICE engagements with businesses typically manifest as either raids or audits. Raids are unannounced visits where agents aim to identify and detain unauthorized workers, often involving searches of the premises and employee questioning. In contrast, audits commence with a Notice of Inspection (NOI), granting employers three business days to present Form I-9s and other employment records to verify the workforce’s authorization to work in the U.S.

Proactive Preparation

Preparation can help employers effectively manage ICE interactions. Begin by designating specific areas within your workplace as being public or private. ICE agents can access public areas without permission, but entry into non-public spaces requires a judicial warrant or employer consent. Clearly mark private areas with appropriate signage and ensure all employees, especially those at reception or security, understand these designations.

Develop a comprehensive response plan by appointing a team responsible for handling ICE interactions. This team should include management personnel and legal counsel. Training is essential to ensure that frontline staff know how to respond if ICE agents arrive, including requesting identification from the agents and promptly notifying the designated response team.

Types of Warrants and Legal Documents

ICE may present various documents during an interaction, each granting different levels of authority. A judicial warrant, signed by a judge, permits agents to search specified areas or seize particular items and allows entry into private areas.

An administrative warrant, however, signed by an immigration officer, authorizes the arrest of individuals suspected of immigration violations but does not permit entry into non-public areas without consent.

Additionally, ICE might issue subpoenas, notices of inspection, or notices to appear. A subpoena requests information or documents within a specified timeframe and does not require immediate compliance. A notice of inspection informs employers of an upcoming audit of Form I-9s, providing three business days to comply. A notice to appear directs an individual to appear before an immigration judge.

Responding to an ICE Visit

If ICE agents arrive at your workplace, remain calm and professional. Politely request and examine any warrants or documents they present to determine their validity and scope. Without a judicial warrant, you are not obligated to allow agents into non-public areas. Clearly communicate your policies regarding access to private spaces and ensure agents adhere to them.

Document the interaction meticulously. Record the agents’ names, badge numbers, and actions during the visit. If feasible, have a designated employee accompany the agents to observe and take detailed notes. This documentation can be invaluable for legal purposes and in addressing any potential disputes arising from the visit.

Conducting Internal Audits

Regular internal audits of your employment records are vital. Review Form I-9s to ensure they are accurately completed and retained for the appropriate duration. Address any discrepancies promptly to maintain compliance. Stay updated with the latest versions of Form I-9 and any changes in immigration laws and regulations to ensure ongoing adherence to legal requirements.

Employee Education

Educate your employees about their rights during ICE interactions. Inform them that they have the right to remain silent and can request legal counsel during questioning. Establish clear protocols for employees to follow if ICE agents arrive, including directing all inquiries to the designated response team. Open communication fosters a sense of security and preparedness among your workforces.

Legal Consultation

Engage with legal experts to develop your response plan, conduct internal audits, and stay informed about your legal obligations. Legal counsel can provide guidance tailored to your specific circumstances, ensuring that your preparations and responses align with current laws and best practices.

Balancing Compliance and Employee Welfare

While it’s essential to comply with legal requirements during ICE interactions, employers also have a duty of care toward their employees. Strive to balance lawful compliance with the protection of your employees’ rights and well-being. This includes being transparent with your workforce about potential ICE interactions and the measures you are taking to handle them appropriately.

By proactively implementing these strategies, employers can prepare for and manage ICE interactions more effectively, ensuring compliance with the law while protecting their business operations and supporting their employees. Preparation, education, and legal guidance are key components in managing these challenging situations successfully.

Carol Harding is an employment lawyer at Earp Cohn with offices in Cherry Hill, NJ and Philadelphia, PA. She counsels businesses, public entities, and individuals on employment-related matters, including employment eligibility verification compliance. This article is for informational purposes only and does not constitute legal advice. For questions about your specific situation, please contact Carol at 856-354-7700 or csharding@earpcohn.com.

Note: This guide provides general information and should not be construed as legal advice. This type of law is complex and constantly evolving. Employers should consult with qualified legal counsel regarding their specific circumstances.