Recent media coverage of heightened immigration enforcement has led employers to the realization that a visit from U.S. Immigration and Customs Enforcement (ICE) is no longer a remote possibility. As a result, HR leaders are asking, are we ready? Whether prompted by an audit or investigation, ICE activity can be disruptive and high-stakes. Employers who wait until agents are at their door may be creating operational, legal and public relations risk.
Having a clear understanding of employer obligations, employee rights, and internal response procedures can help organizations navigate these situations lawfully.
What Employers Should Do if ICE Agents Arrive
Employers should establish internal processes in advance of an ICE visit, which ideally would require contacting centralized human resources leadership and legal counsel immediately. If ICE agents arrive, a designated representative should tell them that they are required, under company policy, to contact HR and legal counsel.
ICE agents may request entry to the premises. Employers may ask to review any search warrant and should confirm that it is signed by a judge, is current and clearly specifies the areas, individuals or materials covered. Without a valid search warrant, ICE agents are generally limited to public areas, such as lobbies or customer service counters. Non-public areas, including offices, warehouses and spaces designated for employees only, typically require a judicial warrant.
It is also important to distinguish between warrant types. A deportation or administrative warrant does not authorize a search of the facility.
If agents ask about a specific individual who is not present, employers may state that the individual is not on site but should avoid providing additional information. Copies of any warrant presented should be promptly shared with human resources and legal counsel.
Employer Responsibilities During an ICE Search
If a search is conducted, employers may designate a company representative to accompany the agents. Employers should not interfere with lawful activities but may respectfully object to actions that appear to exceed the scope of the warrant.
Employers may document the names of supervising agents and request a list of any items seized. Company representatives and employees should not answer questions, provide statements, or produce documents without direction from legal counsel. It is appropriate to state that legal counsel will follow up.
Employers should never hide employees, provide false information, or destroy records. Attention should also be given to employee health and safety, including notifying agents if medical needs or accommodations are required.
Employee Rights During an ICE Workplace Visit
Employers may inform employees that they may choose whether to speak with ICE agents but should not direct employees to refuse cooperation.
Employees generally have the right to decide whether to answer questions and may request to speak with an attorney. Employees are not required to answer questions about immigration status, country of birth or how they entered the United States. They are not required to present documents revealing nationality or citizenship and may decline requests to group themselves by immigration status.
I-9 Audits and Employer Obligations
ICE or Homeland Security Investigations (HSI) may conduct audits of Form I-9 records. If agents request an audit, employers should direct them to human resources leadership and notify legal counsel immediately. The audit process is typically managed through HR and legal counsel, and employees should not independently respond to audit-related questions.
Preparing for Compliance in an Evolving Workplace Environment
As employers continue to assess how best to meet their legal obligations, advance preparation and clear internal procedures are critical. Understanding the scope of enforcement authority, maintaining proper documentation and coordinating with legal counsel can help employers respond appropriately while respecting employee rights.
To discuss further, please contact KJK attorneys Beth Spain (BRS@kjk.com), Rob Gilmore (RSG@kjk.com) or Jon Pinney (JJP@kjk.com).