SIMBA Small Business Blog: Employers' Obligations to I.C.E.

In its simplest terms, the United States Immigration and Customs Enforcement (ICE) enforces federal immigration laws. ICE enforcement actions have increased significantly in the last several weeks, and many organizations have shared resources and trainings on individual (or employee) rights if faced with members of ICE. Those resources are important, and you can find those details here, here, or here.

But, what if you’re a business owner and ICE shows up? What do you have to do? What can you not do? This is a list of simple steps on your current options (knowing immigration laws can change) if ICE shows up at your business:

• Ask for Identification. ICE Agents are legally required to identify themselves, including providing valid credentials (names, badges) and any warrants explaining why they are at your business. If an ICE agent does not provide identification, you can request they leave and return with appropriate identification. You may want to call local law enforcement (state/city/county) if ICE Agents do not provide the same.

• Find Out the Reason for the Visit. As a business owner, you can request ICE to explain why they are at your place of business. They have to have a valid reason (e.g., request for I9 documents) to be at your business.

• Request & Inspect Warrants or Subpoenas. ICE may be there to serve a warrant, subpoena, or court order. If they are saying the same, you are entitled to receive a copy of that when they show up - they have to give you a physical copy. A valid judicial (court) warrant will be signed by a federal judge (in Eastern Washington, it would be one of these judges) or a state court judge. The document will also identify what is to be searched or which documents ICE is requesting, the location of where ICE can search, and if items can be taken (seized). A valid judicial warrant will also be signed within the past 10 days. For more on judicial warrants, you can review the PDF here from the National Immigration Law Center. Judicial warrants require compliance immediately; administrative warrants generally do not.

• Support Your Employees’ Rights. Every individual has rights if ICE shows up, regardless of immigration status. If your employee is being questioned by ICE, you are allowed to ask for your employee to be read his/her/their rights. This includes the right to remain silent and the right to request a lawyer. You may want to provide training to your staff on this.

• Know the Difference Between Public vs. Private Space in Your Business. ICE is permitted to access public spaces in your business, just as a customer would. So, if you have a coffee shop, that is the main part of your cafe and public restrooms and parking lots, for example. ICE does not need a warrant to be in those spaces, but as an employer you can still ask all the questions above. ICE cannot enter private spaces in your business (such as kitchens, employee-only restrooms or break rooms, private offices, etc.) without a valid judicial warrant. You may want to add signs, if you don’t already have them, clarifying private versus public space. Make sure to advise your employees about public vs. private spaces as well.

• Keep I9s, but turn them over only when required. Employers are required to maintain I9 records for their employees (current and former), and ICE can request them with an administrative (non-court) warrant. However, employers usually have three days to provide the records and do not have to turn over the I9 records immediately. Again, without a judicial (court) warrant, you do not have to provide access to physical spaces or physical/electronic records. A request for I9s is called a “Notice of Inspection.”

• Do Not Destroy Evidence or Provide False Information. Again, you do not have to provide any information without a valid, judicial (court) warrant or order. But do not lie or destroy evidence - there are criminal and civil penalties if you do.

• Keep records of the visit. Keep notes of who visited, when, and what they requested. Share documentation with the other owners and key staff.

Most importantly, CALL A LAWYER if ICE shows up to your business either at the time they arrive or after. We are happy to refer you to some attorneys.

Please note that the above is not intended to be legal advice. If you want legal advice, hire an attorney for your business. This is a summary of your current obligations and rights as a business owner, and it is subject to change if laws change. We will update this if we become aware of any new information.