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 relevant personnel, he or she should greet the visiting agents and escort them to a private location. This should be a pre-determined location that will have the smallest impact on employees and the company’s day-to-day business. It is advisable for this location to be near an exit, in the event that the agents depart with detained employees or documents.
After the visiting agents have been escorted to the pre-determined location, the designated manager or representative should first ascertain the full extent of the situation. To do this, he or she should ask the visiting agents for identification and contact information. It is advisable to ask to for an agent’s business card in case a follow-up conversation is necessary.
Once the agent’s identities have been confirmed, the designated manager or representative should inquire about the nature of the visit and ask to see any relevant documentation. Depending on the nature of visit, the agents may present a Notice of Inspection, a subpoena, or even an arrest and/or search warrant. The designated manager or representative should carefully read any relevant documentation and ask for clarification where necessary.
After the nature of the visit has been determined, the designated manager or representative should inform the agents that the company will fully cooperate with the visiting agents. However, the designated manager or representative should also note that relevant legal counsel must be contacted before moving further. The designated manager or representative should not answer any additional questions, consent to any further movement within the premises, or allow additional contact with employees until proper legal counsel is engaged.
V. Engaging legal counsel
A visit by government agents representing DHS and/or ICE is a very delicate matter that may involve multiple complex legal issues. It is extremely important that the designated manager or representative engage in-house legal counsel and/or outside immigration legal counsel immediately. As soon as the nature of the visit has been ascertained, the designated manager or representative should again contact relevant legal counsel and forward copies of all presented documents. The designated manager or representative should wait for further instructions from legal counsel before answering questions and/or consenting to searches or interviews.
VI. A few more things to keep in mind
When handling a visit by government agents, it is easy to feel as if the agents have all the power, especially if the agents act in an aggressive manner. However, as with most law enforcement situations, visiting agents are restricted in what they can and cannot do. Specifically, it should always be remembered that:
Agents must have a warrant in order to search an employer location, confiscate documentation or arrest an individual.
Simply having a warrant does not permit the agent to access an entire place of business or any and all personnel. Warrants are provided to law enforcement personnel by a judge. The judge will generally restrict a warrant to a particular location, set of documents, or specific individual. The visiting agent must act within the bounds of the warrant. This is true for an arrest warrant as well. To legally access a place of business to execute an arrest, the warrant must specifically authorize entrance to a premises and specific parts of that premises in which the agent may go.
A designated manager or representative should immediately inspect a warrant, and should be firm in requesting that the agents stay within the bounds of the warrant. If the visiting agents attempt to act outside the bounds of the warrant, proper legal counsel should intervene.
Designated managers, representatives and all employees should be reminded to never consent to searches, questions, or confiscation of documents that are not expressly required by a warrant. Any questions regarding what is permissible under a warrant should be referred to relevant legal counsel.
The basis for the site visit will determine how an employer can respond. If the agent presents a judicial subpoena or warrant, the employer is required to abide by this request. If the agent presents an administrative notice or subpoena, the employer may be able to challenge this request. For instance, Form I-9 inspections and audits are generally administrative in nature and may potentially be challenged. It is extremely important to notify proper legal counsel to determine the nature of the documents presented and how to properly proceed.
Many subpoena requests provide a period of time in which to respond. This response period should never be waived.
All employees should be made aware of an employer’s plan for dealing with a potential government visit. This should include regular updates and training to ensure all employees know how to respond in the event of a visit. Proper employee communication and training will also reduce the stress and disruption caused by a government visit.
I-9 forms should be completed within 3 days of hiring any new employee. Store these completed forms together in a separate “I-9 file,” not in each employee’s personnel file. This will prevent the agents from looking though the personnel files for evidence in support of their case against the employer.
Consent a personnel file audit and ensure that all hiring paperwork is up to date on a consistent basis.
Any time an agent or agents from a government agency visit an employer, it can be an extremely intimidating and uncertain experience. The Trump administration’s apparent hard-line approach to immigration enforcement seems to indicate that such experiences may be on the rise. Fortunately, with proper planning and communication, most employers can quickly and effectively respond to most enforcement actions, thus reducing the chances of further enforcement or costly mistakes. If you feel that you or your company may be at risk of a potential government site visit, or if you have already been contacted by representatives of DHS or ICE, you should immediately contact an experienced immigration attorney.
About The Grady Firm, P.C.
The Grady Firm can assist with the following assignments related to this topic:
Create a site-visit plan and train relevant employees how to implement the plan;
Conduct personnel file audits and provide checklists to ensure documents and posters meet government requirements;
Draft and revise Employee Handbooks and company policies;
Enroll companies in E-Verify;
Prepare immigration applications for owners and employees;
Assist with on-boarding, disciplining, and terminating employees; and
Defend companies from employee lawsuits.
The Grady Firm works with dynamic employers and employees across the country to prepare successful employment-based visa and Green Card applications. In addition, we help individuals, families, employees, business owners, and investors obtain non-immigrant and immigrant visas (B-1/B2, H-1B, H-2B, L-1A, L-1B, O-1, TN, E-2, E-3), as well and Green Cards and citizenship based on family relationships, investment, or employment.