The Dayton region has seen ICE detainments this year. Private establishments are not required to enforce immigration laws, but they are expected to comply with them and immigration agents may visit workplaces without warning.
Ohio Immigrant Alliance Director Lynn Tramonte said workplaces should know their rights, and both the American Civil Liberties Union’s Ohio chapter and the National Immigration Law Center provide general information about what employers and employees should consider.
Audits
Immigration agents may come to a private workplace for a few reasons: raids, detainment of specific people or Form 1-9 audits, according to the National Immigration Law Center.
A Form I-9 confirms a worker’s identity, as well as his or her authorization to work in the United States. These forms are required for all new employees.
ICE can come to a business to check if the rules for Form I-9s are followed. According to the U.S. Department of Homeland Security, employers will generally receive a written Notice of Inspection at least three days before the inspection.
But immigration officials may also use warrants to obtain the forms without providing advance notice.
If agents find violations of those rules, workplaces can face reprimands like an order to stop hiring people without valid work permits or even civil or criminal fines and other penalties.
Homeland Security says both employers and employees can make mistakes on these forms. ICE provides guidance on how a workplace can perform a self-audit of these documents to ensure compliance with the law.
Raids, detainments
During workplace raids, ICE agents come to a location without prior notice. Immigration agents may have identifying clothing that states “federal agent” or “police,” but this isn’t always the case.
Immigration agents may also come to a work location in search of a specific worker or workers, according to the National Immigration Law Center.
ICE agents in Ohio are detaining working immigrants, and Tramonte’s organization has heard from the families and legal representatives of detained, documented immigrants.
“It’s very confusing,” she said. “It doesn’t make any sense. So employers are very confused, because ICE is coming to their workplace to arrest people who have current work authorization.”
Public versus private
Immigration law experts say that in most cases, anyone, including ICE agents, can enter public areas of your business during its operating hours without permission.
For restaurants, this can include parking lots or dining areas. For office spaces, this could include lobbies. Parking lots are also deemed public in most cases, according to the National Immigration Law Center.
But no one can enter a private area in a business without permission. These spaces could include staff-only rooms or any place where there is a “reasonable expectation of privacy,” according to ACLU Ohio.
For ICE agents, permission to enter private spaces could come in the form of a judicial warrant. This document must be signed by a judge and come from a state court or U.S. District Court. Without a judicial warrant, in most cases, ICE agents would need the employers’ permission to enter private areas.
“If ICE comes to your door, the first thing to know is that no one can enter private spaces of your company without a judicial warrant, signed by a judge,” Tramonte said.
The National Immigration Law Center says some ICE agents may come with administrative warrants. These documents are often signed off by the Department of Homeland Security and do not give federal agents permission to enter private areas of a workplace without the employer’s or property owner’s permission.
“They’re probably going to be nasty about it. They’re probably going to try to convince you that this is a warrant. But again, you do not need to let any ICE agents into private areas of your company without a judicial warrant. So tell them you’re going to call your attorney and walk away,” Tramonte said.
ICE and workers
If ICE visits a business, immigration law experts advise employees to stay calm and not speak on behalf of their employers.
If anything, the National Immigration Law Center suggests employees say, “I can’t give you permission to enter. You must speak with my employer.”
If ICE shows an employer a warrant with an employee’s name on it, the employer does not have to say if that person is working, nor do they have to take the agents to the named employee, according to the law center.
And if an immigration official or law enforcement officer does not have a judicial warrant, and they are disturbing or harassing employees, staff can ask the officer to leave. But if staff use physical resistance or subject officers to “verbal abuse,” they too could face legal repercussions, according to ACLU Ohio.
Other locations
In January, the Trump administration reversed a policy that protected certain areas— such as places of worship and health centers — from immigration enforcement.
This means that immigration officials may now enter these formerly protected spaces to enforce immigration laws, according to ACLU Ohio.
Faith groups can publicly declare their places of worship as “sanctuaries” for immigrants, but this does not provide additional legal protections under federal law.
For health centers, examination rooms are also considered “non-public” spaces, but lobbies are seen as public.
Health centers have no legal obligation to collect the immigration status of their patients. But if immigration officials present a judicial warrant signed by a judge, they may have to turn over specific documents.
ACLU Ohio recommends having a lawyer review any warrants before documents are produced. And if the warrant is valid, under patient privacy laws, information related to a patient’s name, date of birth, demographic information and other information must be redacted.
Make a plan
But guidance for employers, regardless of the workplace, is consistent: a workplace should have a clear, written response plan in place and provide extensive training to their employees.
Employers should consult with their lawyers, specifically ones equipped to provide information about immigration law, to draft this plan.
Immigration and Customs Enforcement officials did not respond to a request for comment on their guidance for employers during ICE enforcement actions.
Form I-9 audits
A workplace can perform a self-audit of documents used to verify work eligibility. The U.S. Department of Homeland Security says the following should be considered:
- The information on the form is clear and can be read.
- The date entered as the date the employee began employment matches the date in payroll records.
- Copies of the documentation retained with Form I-9 are clear and legible, if copies of documentation are made.
- Abbreviations used are widely understood. Do not use an abbreviation that is not widely known.
- All applicable sections of the form are completed.
- The current version of the Form I-9 is used.
- The English version of the form is completed, unless the form is being completed in Puerto Rico. The Spanish version is approved for use only in Puerto Rico.
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