The Top 5 Things to Keep in Mind While Cooperating with an ICE or FDNS Visit

Immigration authorities have several functions that may bring them to a business to conduct immigration and employment-related investigations. As the government prioritizes these investigative functions, it is important for businesses to review their internal policies and legal obligations during a visit from immigration authorities.

There are two primary organizations that are tasked with conducting investigations and site visits at businesses: ICE and FDNS. Immigration and Customs Enforcement (ICE) is a federal law enforcement agency within the U.S. Department of Homeland Security that focuses on public safety through criminal investigations and enforcing immigration laws, including ensuring authorized employment. The Fraud Detection and National Security Directorate (FDNS) focuses on combatting fraud and detecting national security and public safety threats.

In the event of an ICE or FDNS visit, Employers should keep in mind the following:

1. Know your Company’s designated representative.

Employers should have a designated representative who is authorized to make decisions on behalf of the Company in the event of an immigration visit. Employer obligations during an ICE or FDNS visit vary depending on the purpose of the visit. The responsibility to make decisions on behalf of the Employer should be designated to an individual or set of individuals who are knowledgeable about these obligations. Non-designated employees, particularly receptionists, site managers, HR representatives, or other employees who are likely to greet a visiting officer, should know the contact information of the designated representative in the event of an ICE or FDNS visit.

2. Identify the purpose of the visit.

ICE and FDNS serve several different investigative functions. Identifying the purpose of the visit can help Employers to understand the appropriate action based on Company policies and procedures.

• I-9 Audit – ICE officers can request an employer’s I-9 files to ensure that a business remains complaint with U.S. immigration laws and verify employment eligibility of employees. Under the regulations, ICE must give an employer at least 3 business days notice to provide I-9 documents for inspection¹. If ICE visits to serve an I-9 notice of inspection and subpoena, employers will have at least 3 business days to present the Form(s) I-9 requested in the Notice of Inspection to ICE.
• FDNS Visit - FDNS conducts compliance reviews to ensure that employers that sponsor visas, and their employees, follow the terms and conditions of the respective immigration petitions, such as confirming the employee’s work location, physical workspace, hours, salary and duties; and speak with the beneficiary.
• ICE Raid - ICE agents can visit a worksite to conduct site enforcement actions. These raids will take place without notice, and ICE can seek to execute arrest and/or search warrants in these situations. The search warrants may require that the business provide copies of documents including, employee identification documents, payroll records, I-9 records, and/or bank records or other bookkeeping data. ICE agents may question employees regarding immigration status and company representatives regarding the company’s immigration policy and practices.
• Other ICE Investigations - ICE agents may also visit worksites to interview certain employees as part of an ongoing investigation or to take custody of a particular employee.

3. Understand the Company’s options and legal requirements.

Employers must comply with judicial warrants, including arrest and search warrants that allow law enforcement officers to search a particular place or arrest an individual. If an Officer requests to enter a private area of the business without a judicial warrant, the Employer may decide whether to consent to the request. Administrative warrants, including warrants of deportation or removal, are not judicial warrants. If the Employer consents to allow law enforcement to search an employee’s work area, they may do so even without the consent of the employee.

4. Document the visit.

Regardless of the type of visit, employees who interact with ICE and/or FDNS should be prepared to document the visit. Employers should designate an employee to take detailed notes, including:

• The Officer’s names and contact information
• Names and titles of employees the Officer requests to interview
• Copies of documents provided
• Areas visited

The designated employee should also request copies of warrants and photos taken during the visit. Documentation of the visit should be shared with in-house counsel for further review to ensure that the Company continues to follow internal procedures and comply with legal requirements.

5. Contact legal counsel.

Employers should contact legal counsel immediately to ensure that the business complies with all immigration, employment, and other related laws. If counsel cannot be reached until after the visit, prepare to share notes and documentation of the visit as soon as possible. ICE and FDNS visits can be complicated, and legal analysis is recommended after all visits. 

If you have any questions in the event of an ICE or FDNS visit, please contact your Quarles attorney or:

• Maria Kallmeyer: maria.kallmeyer@quarles.com
• Nneka Umeh: nneka.umeh@quarles.com
• Caitlin Barden: caitlin.barden@quarles.com

Please visit our Federal Policy Watch: Monitoring White House Developments page for more insight about navigating changes at the federal level.

END NOTES

¹ 8 CFR § 274a.2(b)(2)(ii) Any person or entity required to retain Forms I-9 in accordance with this section shall be provided with at least three business days notice prior to an inspection of Forms I-9 by officers of an authorized agency of the United States.