What To Do When ICE Shows Up

Tuesday, 12 May 2009 08:27

Immigration

1.Determine who the investigators are.

Ask for a business card. Make sure they really are with ICE. The Company representative should call the agency to verify the investigators' identities, and contact your attorney immediately.

2.Find out why the investigators are there.

RAID:

• Requires a search warrant.
  EXCEPTIONS: A search warrant is not required under the following circumstances:
• The property is within 25 miles of the U.S. border;
• If the grower or his agent gives consent;
• If the government is in "hot pursuit" of an illegal immigrant; or
• If the property is not being used for agricultural purposes.
• Does not require advance notice.

I-9 AUDIT:

• Requires three days' advance notice in writing - Even if the audit is part of a DOL drop-in inspection - Always demand three (3) days' notice before showing anyone the I-9s, whether the request comes from ICE, DOL, or OSC (Office of the Special Counsel for Immigration-Related Unfair Employment Practices).
• Does not require a search warrant.
• Sometimes ICE agents will present a subpoena (in conjunction with an audit) suggesting that you need to comply with it immediately. ICE cannot use a subpoena to shortcut the three-day notice period.

3. Stay calm. The Company representative must be able to stay calm. Losing one's temper will only make matters worse. The Company should not refuse or delay providing documents it is legally required to provide, but the representative should not forget that he/she can ask for time to compile the records requested by ICE agents. No documents should leave the premises without making copies, and the Company should not turn over more documents than the law requires. Nothing in the law requires you to give ICE original I-9 forms or to make photocopies of I-9 forms.

4. IN A RAID: The search warrant will identify the agency or officers, the location to be searched, the specific items or individuals to be seized (if known), and an expiration date for the court order. Agents are not entitled to search outside the scope of the warrant. Make an inventory list of the areas searched and the items and computer files seized.

During a raid, the Company representative may accompany ICE officers on their search, and should always take notes on everything that is occurring. Make note if any unusual or disturbing behavior occurs (such as "badgering" employees or questioning only foreign-appearing employees). Do not do anything that could get you into more trouble. Do not hide employees, advise them to run or hide, or help them escape from the premises.

5. IN AN I-9 AUDIT: The Company is technically required to produce only the I-9 forms for inspection. If ICE wants to see anything else, you can require the agent to get a valid subpoena. You are not required to keep or produce photocopies of the documents employees presented to establish identity and/or employment eligibility, so do not do it. If the audit is going to be on Company premises, be sure to sequester the ICE agents to limit their access to the business. If the agents cannot be sequestered, then the Company should offer to deliver copies to the agency for the audit.

If, while preparing for the audit, the employer discovers errors on I-9s or missing forms, it should not correct the errors prior to the audit. Federal regulations allow employers 10 business days after notification of a technical error on the I-9 to correct the error and most minor technical problems can be corrected during this period. If an I-9 is missing altogether, then the employer should immediately have the employee complete an I-9. Never back date an I-9 to the date of hire!

6. Know your rights. While it is always important to be cooperative in both routine audits and in more serious raids, judgments need to be made as to the extent to which an employer should communicate with the government. For example, no one is required to answer any questions. The Company should consult with its attorney before giving agents access to employees or management, or before allowing any press contacts, especially if the government suspects criminal activities have been carried out by the Company or some of its employees. Also, you have the right to continue operating your business during the ICE visit.