Question: With all the news about expected ramping up of immigration enforcement, what should we do if Immigration and Customs Enforcement (ICE) shows up at our workplace?
Answer: If ICE agents arrive at your business without any warning, it’s important to know what legal parameters they must abide by, and your own obligations for complying with them. That way, you can feel prepared to handle the encounter rather than feeling caught off-guard.
The areas ICE can freely enter are as follows:
- ICE can enter areas of a business that are open to the public such as a parking lot or lobby, but they need a valid search warrant to conduct a search of any nonpublic areas.
- Employers may choose to give permission for ICE to enter the property without a warrant. Although California’s Immigrant Worker Protection Act attempts to prohibit California employers from allowing ICE agents to access nonpublic work areas unless ICE provides a warrant (California Government Code 7285 to 7285.3), that restriction was put on hold by a federal judge and left undisturbed by a later U.S. Ninth Circuit Court of Appeals decision (United States v. State of California, 9th Cir, April 2019). Note: Although Oregon and Washington have “sanctuary” laws protecting undocumented workers, they apply to state agency actions, not private employers’ actions. Arizona, Idaho, and Montana do not have any such laws.
If ICE agents seek to enter the property:
- The best practice is to ask to see ICE’s warrant so you can review it. When reviewing the warrant, make sure it specifies that it’s a search warrant (as opposed to an arrest warrant, which is different and doesn’t authorize a search of private property). Also make sure that the warrant has the proper address, and that it’s signed by a judge or magistrate.
- If ICE presents a valid search warrant, the agents must stay within certain limits. The warrant will describe the specific areas or items that ICE is authorized to search. Their search is limited to the areas or items specified in the warrant, so they can’t go outside of those bounds, and they can’t continue to search once the warrant’s purpose is completed.
- Once you review the warrant and know what ICE agents are looking for, you can see if they will agree to conduct their search in a manner that’s least disruptive to your business.
- If an ICE agent presents an arrest warrant as opposed to a search warrant, that doesn’t give them authority to enter private work areas. (An ICE agent might also present an “administrative removal warrant,” which directs ICE to detain someone, but doesn’t give ICE authority to enter private work areas either.) In either case, you can tell the agent that they will have to wait until the affected employees leave work.
If ICE shows up unannounced and asks to inspect your I-9 forms:
- For a routine Form I-9 inspection, ICE is required to provide a minimum of three days’ notice, and surprise inspections aren’t permitted. If they want to inspect your I-9 forms immediately, they need to have a search warrant or subpoena that allows them to do so. Again, you can ask them to present the warrant or subpoena so you can review it.
- Within 72 hours of receiving notice of a planned inspection of I-9 forms, California Labor Code 90.2 requires California employers to post a written notice in the language they normally use to communicate with employees. The California Labor Commissioner offers a sample notice. In addition, California employers must individually notify affected workers of the results of the federal inspection by hand-delivery at work if possible and if not, by mail and email if available.
- Oregon has a similar law which requires notification to employees within three business days of receiving notice from ICE or another federal agency. Oregon employers must post and individually distribute a copy of the federal notice to each employee along with a written notice in the language the employer normally uses to communicate with employees. More information, including a notice template, is available from the Oregon Bureau of Labor and Industries (BOLI) federal inspections notice webpage.
- Arizona, Idaho, Montana, and Washington do not require you to notify employees of a scheduled inspection of I-9 forms, but you may do so if you wish.
- If ICE presents a valid search warrant for the I-9 records, you’ll need to allow the search.
- If they present a subpoena for the I-9 records, the subpoena might require you to produce the records immediately, or set a different time frame to produce them, so make sure you’re clear on exactly what the subpoena requires you to produce and when.
If ICE provides three days’ notice of a routine inspection:
- We recommend conducting a proactive Form I-9 review to prepare for a potential audit and get ahead of any potential issues. Our Legal Guide, Form I-9: Surviving an Immigration Audit, describes the I-9 audit process in detail, including what to expect from ICE during an onsite I-9 inspection. Failing to properly complete and maintain these forms can result in significant fines, which were raised due to inflation in a Federal Register notice on June 28, 2024. If you’d prefer to have us conduct a proactive review of your I-9 forms, please contact your Vigilant Law Group employment attorney to ask for a quote.
It may be helpful to develop a plan for responding to a potential ICE visit to your workplace. We recommend training receptionists, security guards, supervisors and/or managers (or others who may be responsible for interacting with visitors in general or an ICE agent in particular) on appropriate procedures. This can help them feel prepared to handle the encounter, and help you ensure that everyone is on the same page about how they can, must, or cannot respond.
Ultimately, if ICE comes knocking, reach out to legal counsel immediately. It’s important to get guidance from the beginning of the process. If you have any questions about how to prepare for ICE actions as an employer, or if you need help finding further information or resources, Vigilant members, reach out to your Vigilant Law Group employment attorney or your general business counsel.
