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
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.
To detain a specific employee.
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
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.
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
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
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.
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.
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.
*This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.
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