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What Construction Employers Need to Know to Prepare for an ICE Raid

Construction employers should be fully prepared for the renewed focus on immigration enforcement, which will likely include a significant number of high-profile workplace immigration raids. U.S. Immigration and Customs Enforcement (ICE) consistently advocates for workplace enforcement to target undocumented workers and the businesses that hire them. Therefore, employers should be prepared for ICE worksite enforcement actions.

What Rights Do Employers & Employees Have?

Employers have the right to:

  • Call a lawyer
  • Ask for a copy of the warrant and read/inspect it carefully
    • If it is an administrative warrant (issued by DHS/ICE/CBP), access to non-public areas can be denied
    • If it is a judicial warrant (issued by a federal court and signed by a judge), then ICE can access and search public areas
  • Have at least one company representative follow each agent around the facility (during which the representative may take notes)
  • Note any items seized and ask if copies can be made before they are taken
  • Watch ICE agents to ensure they are complying with what is written in the warrant
  • Object to any searches outside the scope of the warrant, and keep note of any such instances and any materials seized in those instances
  • Protect privileged materials by requesting that attorney-client documents not be inspected by the agents unless/until you are able to consult an attorney
  • Request reasonable accommodations/alternatives if items being seized are critical business documents and/or will impact ability to continue operations
  • Ask for a copy of the complete inventory list of items seized during the search

Employees have the right to:

  • Remain silent and refuse to answer questions
  • Request to speak to an attorney
  • Refuse to hand over any IDs or papers to ICE
  • Refuse to comply if ICE asks them to do something like group themselves by immigration status

What Is ICE Allowed & Not Allowed to Do?

ICE agents are allowed in public areas such as parking lots and lobbies without a judicial warrant, but without a judicial warrant, the agents cannot harass employees or interfere with your operations. ICE can only enter a private space with a judicial warrant or consent. 

With the proper service of a valid judicial warrant and the implantation of its search, ICE is allowed to:

  • Demand that business operations stop and that no one leave the premises without permission
  • Move employees into a contained area and proceed with questioning them
  • Seize items listed in the warrant
  • Detain and/or take employees into custody

How Should Employers Educate Staff Beforehand?

Construction employers should provide staff trainings with an emphasis on employer and employee rights during an ICE worksite raid or encounter.

They should also establish what is called a Rapid Response Plan to educate their employees on the organization’s response protocol for an ICE visit. Such plan should designate a trained “raid team” to handle ICE visits, including contacting immigration and employment counsel, monitoring compliance with warrants, and tracking actions taken by ICE agents.

Employers are advised to practice for an ICE visit just like they would for a fire drill.

How Should Construction Employers Respond When ICE Arrives?

If ICE agents show up to conduct a raid, here are the steps recommended to stay compliant while, at the same time, minimizing the disruption and operational risks:

Request & Examine the Warrant

Verify the search warrant’s validity, ensuring it is issued by a federal court and signed by a judge. Immediately provide a copy to legal counsel. If ICE officials have a search warrant when they come to your business, then they will take the position that they are entitled to immediate access to your premises and records.

There is no three-day period to gather documents, and ICE agents will not wait for your attorney to arrive before commencing their search.

Review the Warrant’s Scope & Try to Keep the ICE Agent Within What Is Outlined as Permissible Activity

This may mean providing access to certain listed areas or documents but not giving access to other areas and items that are not listed or requested.

Monitor But Don’t Interfere

Assign a representative to observe and document ICE’s actions while maintaining a cooperative stance. Do not obstruct or engage in hostile actions, which could worsen legal outcomes. 

Avoid Actions That Could be Construed as Harboring

Instruct managers not to hide employees, shred documents, or provide false information. Employees should be free to speak to ICE agents if questioned but are not required to do so without legal counsel.

Document & Report Seized Property or Records

Track all items and information taken by ICE and share this information with legal counsel immediately. 

Manage Public Relations

In reaction to the raid, determine whether a public statement is necessary and consider working with your communications team to limit risks and minimize exposure.

What Is the Potential Liability for Not Handling This Issue Properly?

Construction employers risk significant civil and even criminal fines for failure to comply with immigration regulations.

  • Civil fines: Penalties for Form I-9 violations can reach up to $2,789 per form. Knowingly hiring undocumented workers can lead to fines of up to $5,579 for first offenses — but up to $27,894 per worker for repeat offenders.
  • Criminal penalties: Managers and business owners could face up to 10 years in prison and fines up to $250,000 for actions considered “harboring” or concealing undocumented workers. Upon conviction of any federal felony, the Criminal Asset Forfeiture statute allows a jury to authorize seizure of all assets used in the commission of the crime and all proceeds of the crime.

Conclusion

Excluding the money, ICE raids can halt business operations, damage morale, and lead to public relations issues. Employers should full review their immigration policies and procedures to ensure they are prepared for immigration audits, raids, and other workplace compliance issues.

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