by Lori Chesser
You employ a large number of seasonal workers, many with temporary work visas, at several different sites. You also have a main office. You would like to train your frontline employees on what to do if U.S. Immigration and Customs Enforcement (ICE) shows up with a warrant for an immigration raid. What should you tell your receptionist at the main office? What should you tell your managers and site supervisors at the other worksites? 
Like the Boy Scouts, be prepared
Because of the recent national shift in immigration strategy, even employers that have the best compliance practices may encounter immigration-related enforcement. It’s important to prepare your staff for a law enforcement encounter.
When ICE conducts a “raid,” its agents enter the worksite with a warrant. Receptionists or other frontline employees should first ask for the warrant if it isn’t immediately provided. If another staff member is present, she should read the warrant and copy or scan it to send to your attorney. Meanwhile, the receptionist or another point person should tell the officers that it’s company policy to call the company’s attorney. (And the attorney’s number should be readily available so that someone can make the call.) In some situations, an ICE agent will be willing to speak to the attorney on the phone.
It’s likely that several agents will be involved in the raid, and they may not wait for the outcome of the phone call. They may begin to collect documents and take information from company computers (or even take the computers themselves). They may also look for particular employees or ask employees to gather in a certain area.
It’s important that your employees not obstruct ICE activity. However, they may follow ICE around the worksite and record the agents’ actions with their cell phones. If an employee believes ICE is exceeding the scope of the warrant (e.g., by taking information that isn’t covered), she may question a particular action or note it on the recording.
Employees should not try to tip off or hide coworkers or in any way hinder the agents’ inspection. No employee is required to answer questions from ICE without an attorney present. However, company representatives should refrain from instructing employees not to answer questions. You should designate spokespersons in advance, and only those employees should speak on behalf of the company. Others should tell ICE that they are not authorized to speak for the company.
While ICE agents may question employees, they cannot require anyone to remain on the premises unless they are under arrest. Depending on the specifics of your worksite, you should establish a protocol for making sure that employees’ rights are respected and their health and other personal needs are considered. Establishing company policies and adding information to your employee handbook now is a good way to prepare for an ICE visit. Having important electronic data and records backed up off-site is also a good idea.
Other immigration-related enforcement, such as a visit from a Fraud Detection and National Security (FDNS) agent, is also possible. FDNS agents are tasked with confirming that the terms of temporary visa applications are being followed. They won’t typically have warrants, but we still recommend that you immediately call your attorney before allowing an FDNS agent access to your premises or records. U.S. Department of Labor (DOL) employees can also include immigration-related inquiries in their investigations. Anytime a government agent visits your workplace, it’s important to contact your attorney.
Bottom line
If you’re concerned about your employees’ eligibility or authorization to work in the United States, you should contact a competent immigration attorney to assess the situation. “Knowingly” hiring or continuing to employ a person who isn’t authorized to work (including having “constructive knowledge”) can result in criminal penalties as well as civil fines in certain situations.
Lori Chesser is an attorney with Davis Brown Law Firm, practicing in the firm’s Des Moines, Iowa, office. She may be contacted at lorichesser@davisbrownlaw.com.
Need to learn more? Join us at the 22nd Advanced Employment Issues Symposium where ECN attorneys where two sessions are designed to cover your i-9 issues. The 75-minute session Form I-9 and National Origin/Citizenship-Based Discrimination: How to Minimize Legal Risks in Recruiting Employment Verification and Re-verficiation, and Avoid ICE Penalties will focus on avoiding violations under Title VII and recommend strategies for self-auditing your practices for managing Form I-9s to avoid hefty ICE penalties and potential legal claims. The attorney will review the new Smart Form I-9 as well as how to correct I-9 errors, get the documentation you need from employees, and handle a situation where you determine that a worker doesn’t have the documentation to prove he or she is authorized to work in the United States. The 3-hour preconference workshop Avoiding Hiring Landmines: Navigating Pre-Employment Inquiries, Background Checks, Drug Testing, I-9s, and Other Legal Tripwires will cover employment verification procedures for meeting I-9 requirements as well as other overlapping hiring policies and practices. To learn more, click here.