Immigration site visits are on the rise and can occur without notice. The most common visits involve paperwork audits. In some cases, certain employees are targeted.
Note: California law, in particular, limits access when there is no warrant.
Enforcement Agencies under the Department of Homeland Security
- Homeland Security Investigations (HSI) collects and inspects employers' I-9 Employment Eligibility Verification forms and other paperwork for compliance.
- Immigration & Customs Enforcement (ICE) enforces immigration law and can initiate deportation proceedings. ICE agents aren’t police but they can carry guns or small clubs and may have gear that says “Police” on it.
- U.S. Citizenship & Immigration Services (USCIS) audits employment-related immigration sponsorship.
Before Any ICE or Other Immigration Officer Visit
- Make sure I-9 forms and other immigration paperwork is complete and accurate. Do an internal I-9 paperwork audit.
- Designate a person or department (such as Human Resources or Legal) as the point of contact.
- If you have received a Social Security Administration “No-Match” letter, document steps to try to resolve discrepancies.
If/Once Immigration Arrives
- Remain calm. Try to remember names and pay attention to what is happening.
- Allow entry into public areas. Anyone – including ICE agents – can enter the public areas of your business without permission. Public areas may include the lobby, reception area, front office, and parking lot.
- Ask the agents for identification and a follow-up phone number, and notices or other paperwork explaining why they have come.
- Contact Human Resources, the company attorney, or the person designated for contact.
Types of Paperwork
- Notice of Inspection – this is an ICE/HSI request to present I-9 forms within 3 business days. Contact an attorney before responding.
- Immigration Enforcement Subpoena – this usually includes a request for other documents along with the I-9s.
- Judicial Warrant – this warrant is signed by the judge of a court. It may allow ICE agents to enter private areas or seize documents onsite. Read the warrant. ICE is limited to the scope of the warrant. Do not give consent beyond the scope.
- Administrative Warrant – this usually has “Department of Homeland Security” at the top of the first page and is on Form I-200 or I-205, issued as part of an I-9 audit. If ICE shows you an Administrative Warrant with an Employee’s name on it:
- You do NOT have to say whether or not that Employee is working on that day.
- You do NOT have to take the ICE agents to the Employee named on the warrant.
- Without an appropriate warrant or subpoena, California employers must not give permission or voluntarily consent to access. The employer should say “I cannot consent and I do not consent.” Watch to see they don’t go beyond what’s on the warrant.
- Inventory Receipt. If records are seized, ICE must give the company a receipt to inventory what they are taking.
Communications with Employees During the Visit/Raid
- Remind Employees to stay calm and NOT run to the exits. ICE agents are allowed to engage in “hot pursuit” and to arrest people suspected of violating immigration laws.
- You may video or record the ICE agents so long as you do not interfere with their permitted activities.
- With a judicial warrant, ICE may confiscate phones, laptops, etc. Ask ICE to “image” the technology without taking devices.
- Do not give voluntary consent for ICE to stop, question, or arrest anyone, or go everywhere they desire.
- Do NOT help ICE agents sort people by their immigration status or the country they are from.
- The best way for Employees to protect their rights is to stay silent and ask for an attorney. All Employees have this right. Employees do not have to hand over any IDs or papers to ICE.
- Any information that Employees give to ICE can be used against them later.
- Anyone who is arrested should ask for an attorney and a “show cause hearing.”
Immediately After the Visit/Raid
- Write or record these things after the officers leave:
- How many ICE agents were present (inside or outside)? What were their names?
- How were the agents dressed? How were they armed?
- Did the agents make you or your Employees believe you could not move or leave?
- Did the agents threaten or mistreat anyone? If yes, how?
- If ICE arrests anyone, ask the ICE agents where they are being taken.
- If there is an I-9 inspection, prepare the documents. You can request more than 3 days to produce the records.
- California employers must post a Notice to Employees of I-9 and other immigration records inspections. (Labor Code 90.2.)
DISCLAIMER: This document is a publication of Davis Wright Tremaine LLP, to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.