We recently posted on Immigration@Work an article that provides guidance on employer and employees’ rights when immigration agents arrive at the workplace. With continually increasing federal immigration enforcement efforts that can affect any employer, we’ve decided to share it with our Law@Work subscribers.
Fear of the Unknown
A visit from the United States Customs and Immigration Services (or “ICE” as it’s commonly known) is stressful for most organizations. Even if you’re fully-compliant with immigration requirements, know the “do’s and don’ts” when it comes to completing Form I-9s and understand the difference between an administrative and a judicial warrant, it’s still the big, scary, and very official-looking ICE that’s been in the news lately. Earlier this month, approximately 200 immigration agents surrounded an Ohio garden and landscape company and blocked off local streets while helicopters flew overhead. Over one hundred workers were arrested in the raid. Two months prior to that, federal agents arrested about 100 immigrants at a meat-processing plant in rural Tennessee. That followed other workplace raids across the country including a sweep of 7-Eleven stores. It is expected that undocumented workers will be charged with identity theft and tax evasion, and employers will be criminally charged.
Despite what many may think, however, 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 is not going to result in anything other than your co-workers making fun of you at future employee gatherings for the rest of your time at the company. I read that 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.
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 does not 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 does not 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. Having a judicial warrant only gives ICE 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.
The Right to Remain Silent
Human resource 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 US legally. Employees also do not have to sign anything. No one is required to group according to country of origin. If an employee is asked to do so, the employee can simply walk to an area where no one is being grouped. Employees do not 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.
The I-9 Audit
Last year we blogged about the importance of conducting an I-9 self-audit as the number of federal audits had steadily risen. Because ICE’s enforcement actions have continued to include extensive I-9 audits, we hope you’ve conducted a self-audit and have no concerns about what ICE agents might find if they show up. There are a few things you should know, however. First, you don’t have to and should not turn over your documents immediately. Employers have three days from receiving a request to provide their Forms I-9. 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 ICE visit, make sure you are writing down the name(s) of any agents present and what happened. After the visit, fill in any blanks in your notes and contact an immigration attorney for guidance on 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.
If you found this article useful and would like to learn more about workplace immigration issues, consider subscribing to Immigration@Work, Skoler Abbott’s blog dedicated to providing information and analysis related to the employment of immigrants and foreign workers.