What to Do When DHS or ICE Comes Knocking at Your Door
By Anthony Mance, Esq. and Jennifer A. Grady, Esq.
The Trump Administration has repeatedly indicated that it will take an aggressive and proactive approach to enforcing immigration laws. While it is not yet clear how and when this will translate into developed policy, it is prudent for employers to be prepared for increased oversight and enforcement. One issue that demands particular attention is how employers should handle on-site visits by Department of Homeland Security (DHS) and/or Immigration and Customs Enforcement (ICE) agents. These visits can range from basic inspections and audits to large-scale immigration raids and arrests. Any employer is subject to these visits, but keep in mind that employers sponsoring employees on employment visas such as H-1B, H-2B, OPT, L-1, TN, E-3, O-1 are also subject to visits by the Department of Labor and USCIS’s Fraud Detection and National Security Directorate.
While such visits can be confusing and intimidating, developing a coherent plan for dealing with immigration visits and effectively communicating that plan to relevant employees will reduce the risk of making costly mistakes. Do your receptionist, front-line person, and field employees know how to respond when an officer comes in with a badge and a warrant? If not, it’s time to create a plan.
The following is a brief overview of immigration-related site visits, and what employers can do to properly prepare for, and react to, such visits.
I. Who May Be Involved in a Site Visit
As noted above, the government agencies that will normally be encountered during immigration-related visits are the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE). It should also be noted that United States Citizenship and Immigration Services (USCIS) conducts employer site visits. However, USCIS visits are generally in conjunction with an employment-based petition filed by an employer on behalf of an employee and thus will not be covered in this article.
II. Why a Site Visit May Occur
While DHS or ICE may initiate an employer site visit for a number of employer-specific reasons, there are generally three scenarios in which a visit will occur:
To execute an inspection or audit of an employer’s immigration-related documentation.
Such an inspection or audit often involves the government agency issuing a “Notice of Inspection” of an employer’s Form I-9 documentation. The Form I-9 is a form that an employer must file demonstrating that employees are permitted to legally work in the United States. Inspections and audits of this nature will focus on determining whether proper procedures have been followed by the employer, and whether Form I-9 documentation has been forged, or otherwise intentionally falsified. DHS or ICE agents may conduct such an inspection or an audit based on a random review of employers, or due to a specific and credible lead or tip, often from a disgruntled employee or company competitor.
To detain a specific employee.
If DHS or ICE agents have credible evidence that an employee is working without proper authorization or has otherwise violated US immigration law, the agents may attempt to arrest that individual at his or her place of employment. Such an action may stop with the arrest of the employee, but could also involve further questioning and/or sanctioning of the employer, depending on the employer’s knowledge of, or involvement in, the employee’s actions.
To conduct an employer-wide immigration-related raid.
This type of action often involves multiple agents entering an employer’s place of business—unannounced—with the purpose of making arrests and/or collecting evidence. Such raids are generally targeted at employers suspected of committing wide-spread immigration law violations, and can involve multiple agencies and the Department of Justice (DOJ). While these types of actions have traditionally been rare, it is unknown whether the current administration will push for greater utilization of this enforcement method.
III. How to Prepare for a Potential Site Visit
While it is impossible to anticipate all potential immigration related enforcement situations, there are ways to minimize potential hazards and reduce stress on employees during such situations.
Follow Immigration and Employment Laws Consistently
The first and most important step is to ensure that all immigration and employment-related laws are consistently followed. This can include:
Ensuring all Form I-9 documentation is properly completed and up-to-date,
Making sure all employees are verified to have the legal right to work in the United States,
Determining that all employees subject to employment-based immigration procedures (such as employment visas and employment authorization documents) have obtained proper work authorization,
Ensure that all Department of Labor regulations are followed, leading up to and after filing Labor Condition Applications (this is required as part of many employment-related immigration applications) and
Reporting any suspicious activities to the proper authorities immediately.
Properly following immigration laws and procedures will significantly reduce (though not completely diminish) the chances that a site visit will occur.
2. Develop a Site-Visit Plan
The second step is to develop and execute a practical plan of action to initiate when and if a government visit occurs. For such a plan to be effective, it must be quickly deployable and must be familiar to all personnel potentially affected by a site visit. Such personnel will likely include: receptionists, security personnel, managers, human resource representatives, in-house legal counsel, and outside legal counsel. In the event of a site visit, it is important that these individuals understand the process and how to respond.
Whoever is closest to the door will be the first line of defense
Government site visits often come in the form of an agent or agents who visit an employer’s place of business unannounced. This often means it is up to a receptionist, or in some cases security personnel, to handle initial contact. It is extremely important that this individual knows how to respond and whom to contact in the event of a site visit. Anyone likely to face initial contact with a government representative should be provided with a detailed pan of action, a list of who to contact within the company, and a script explaining what to say. This should include an explanation of the three main reasons for site visits, as listed above.
When preparing an action plan for first-line representatives such as receptionists and security personnel, developing proper response procedures is imperative. The representative should be fully cooperative with the government agent, but should keep conversations to a minimum. As investigators, government agents will be attempting to gain as much information as possible during the visit. This may include initiating small talk with the first-line representative. It is important that the representative is aware of why the government agent is there, and to know that that anything said could be potentially damaging.
What to Say
First-line representatives may want to limit dialogue to greeting the government agents, asking them to wait in the waiting area/lobby, advise the agents that she or he is not authorized to allow access to the establishment, inform the government agents that the proper personnel are being contacted, and advise the agents that she or he is not authorized to speak on behalf of the employer.
If a visiting agent acts aggressively, or demands immediate access to the establishment, the first-line representative should remain calm and inform the agent that he or she is following an established protocol. The first-line representative should state that this protocol will ensure the agent’s requests are met quickly and efficiently.
IV. Executing an effective response
After a first-line representative has initiated contact with visiting government agents and contacted the relevant personnel, it is then up to a designated manager or other representative to respond to the situation. The first action that should be taken is to immediately contact any relevant management, in-house legal counsel, and outside legal counsel to apprise them of the situation. This should be done before meeting with the visiting agents. A list of personnel to be contacted and contact information for that personnel should be part of the action plan and should be readily accessible in the event of a visit.
Once the designated manager or representative has contacted the