We are living in a time of aggressive efforts by U.S. Immigration and Customs Enforcement (ICE) to increase deportation of undocumented workers and to prosecute employers who hire them. ICE agents can appear unannounced at a place of employment to search for illegal workers or to detain specific individuals. Small business owners need to understand their rights and responsibilities in order to protect both their business and their employees.

The first thing to do is prepare in advance for a possible ICE raid. Employers are required to maintain accurate I-9 forms, which verify the identity and employment authorization of each employee. Make sure your I-9 records are complete and available. If you are served with a notice of inspection (NOI), you typically have three business days to produce the I-9 forms. If ICE finds some employee data is missing, you will be given 10 days to produce valid work authorization for those employees. 

Second, develop a protocol for handling ICE visits, including designating who at your business is responsible for interacting with agents. Train your staff, giving instructions not to speak to ICE agents beyond referring them to the manager on site. Inform employees that they have the right to remain silent and to request contacting an attorney.

If ICE agents arrive at your premises, ask them for identification and about the purpose of the visit. Be sure to get the agents’ names and badge numbers or other ID. If the agents signal their intent to search the premises or to arrest specific individuals, you should:

• Request a warrant — Ask to see a judicial warrant, that is, one issued by a judge. Only this type of warrant allows law enforcement to enter private areas and conduct a search. If the agents produce only an administrative warrant, issued by ICE or another agency, this does not authorize them to enter private areas without your consent. 

• Withhold consent — If a judicial warrant is presented, it must specify the areas to be searched or the individuals to be detained. You are not required to consent to any search beyond what the warrant specifies. If only an administrative warrant is presented, or if there is no warrant at all, you should expressly state that you do not consent to ICE agents entering any private areas.

• Refrain from interfering — If ICE agents nevertheless proceed to enter and search private areas without a proper warrant and without your consent, state that you protest, but do not physically oppose them. Any overt resistance could result in criminal charge of obstruction.

• Call a lawyer — Immediately contact an attorney who can provide guidance and help protect your rights and those of your employees. Tell the ICE agents you are doing so.

• Document what occurred — Observe and write down everything that transpires, including how many ICE agents were present, how they were dressed, whether they were armed and their general treatment of managers and employees.

If any of your employees are arrested during the raid, find out where they are being taken and how they can be contacted. Assist them in obtaining legal counsel who can request their release on bond or other conditions. 

An ICE raid can seriously disrupt your business as well as expose you to potential criminal liability for immigration law violations. Maintaining compliance with employment laws, having a clear plan in place and knowing how to handle interactions with ICE agents are vital to protecting your business and your employees. Consulting with an attorney can help you prepare for and get through these situations.

The attorneys at Pikrallidas & Probasco in Fairfax, Virginia advise businesses in a full range of legal matters. Call us at 703-267-2600 or contact us online to arrange a consultation. Hablamos español.