Preparation is crucial when it comes to an immigration worksite enforcement action. Even if you carefully verify the work authorization of all your employees, Homeland Security Investigations (HSI), a federal law enforcement agency within the Department of Homeland Security (DHS), may still investigate your workplace based on a lead, complaint, or other factors. If you do not have a worksite enforcement action plan in place, you should consult with a qualified immigration attorney to ensure that you are prepared in the event of an unannounced federal law enforcement visit. In the meantime, if HSI arrives at your workplace, be aware of the following:
Contact Your Attorney
When HSI arrives at your worksite, immediately contact your attorney. The receptionist or company representative should inform the officers, “Our company policy is to call our lawyer, and I am doing that now.” Your attorney may be able to come to the worksite promptly to assist or speak to the federal agents over the phone.
AILA is the national bar association of immigration lawyers comprised of over 15,000 members located in every state of the United States and worldwide.
Scope of Operations:
Immigration officers are permitted to enter any public areas of your workplace but must have a valid search warrant or your consent to enter non-public areas.
- A valid warrant must be signed and dated by a judge. It will include a timeframe within which the search must be conducted, a description of the premises to be searched, and a list of items to be searched for and seized (e.g., payroll records, employee identification documents, Forms I-9, SSA correspondence, etc.).
- An agent will serve the search warrant on a receptionist or company representative and alert other agents to enter.
- Your company can accept the warrant but not consent to the search. If you do not consent to the search, the search will proceed, but you can later challenge it if there are grounds to do so.
- Depending on the type of business, HSI may demand that equipment be shut down and that no one leave the premises without permission.
- HSI may move employees into a contained area for questioning.
- While some agents question employees, others will likely execute the search and seizure of items listed in the warrant
Employer Rights and Responsibilities:
Employers have certain rights and responsibilities during a worksite enforcement action:
- If a search warrant is presented, examine it to ensure that it is signed by the court, that it is being served within the permitted timeframe, and that the search is within the scope of the warrant – the area to be searched and the items to be seized. Be sure to send a copy of the warrant to your attorney.
- Write down the name of the supervising agent and the name of the U.S. attorney assigned to the case.
- Have at least one company representative follow each agent around the facility. The employee may take notes or videotape the officer. Note any items seized and
ask if copies can be made before they are taken. If the agent does not allow you to make copies, you can obtain copies later.
If agents presented a valid search warrant and want access to locked facilities, unlock them. - Request reasonable accommodations as necessary. If agents insist on seizing a document that is vital to your operation, explain why it is vital and ask for permission to photocopy it before the original is seized. Reasonable requests are usually granted.
- Do not block or interfere with federal agent activities. Note that you are not required to give the agents access to non-public areas if they did not present a valid search warrant.
Object to a search outside the scope of the warrant. Do not engage in a debate or argument with the agent about the scope of the warrant. Simply state your objection to the agent and make note of it. - Protect privileged materials. If agents wish to examine documents designated as attorney-client privileged material (such as letters or memoranda to or from counsel), inform them that they are privileged and request that attorney-client documents not be inspected by the agents until you are able to speak to your attorney.