The frequency and magnitude of immigration raids by Immigration and Customs Enforcement (ICE) has reached a new all-time record high.  On Monday, May 12, 2008, ICE executed its largest raid ever at Agriprocessors, Inc., the nation’s largest kosher meat processing plant, in Postville, Iowa.  Over one-third of Agriprocessors’ employees were arrested and detained in connection with various immigration violations. 
     Responding to an immigration raid is an uncomfortable, costly, and intrusive process.  The fact remains that employers are rarely, if ever, given notice prior to these immigration raids and simply do not know what their rights are when faced with a raid.  Consequently, many employers consent to unlawful searches without even considering the possibility that the government may be violating its rights.  The key to minimizing civil penalties and criminal prosecution in connection with immigration raids is knowing how to respond and knowing what rights an employer has.  This news release is intended to give general information about employer rights when faced with an unannounced immigration raid and is not a substitute for legal advice. 
What should an employer do when a government official arrives?
Step One:  Contact an immigration attorney immediately.  An experienced immigration attorney can quickly assess the purpose and scope of the immigration raid and/or audit.  Additionally, an attorney can facilitate communication between government and employer officials while simultaneously protecting the employer’s rights and minimizing emotion. 
Step Two: In the absence of the assistance of an attorney, determine the purpose of the government official’s visit if it is not already clear.  At the same time, ask the government officials to produce for employer review all warrants, subpoenas, and notices of inspection.  These documents give government officials varying degrees of rights to search an employer’s premise and/or company records.  Do not be surprised if the government official resists or avoids the request entirely; however, do be firm in your request.
Step Three: If the government official wants to search the employer’s premises, the law generally requires a warrant.  In other words, an officer may not search the premises of a business premises without permission from a court.  However, public areas of the employer’s premises can be searched without a warrant because there is a diminished expectation of privacy in those areas.  Therefore, in the event the government official produces a warrant, do not resist it; simply monitor the search and keep a copy of the warrant.  A search warrant may compel the employer to produce documents, permit the official to search for a specific person or persons, permit a search of the employer premises, or all of the aforementioned.
Step Four: If the government official only wants to inspect I-9 forms or other employer documents, the employer may insist that the government official produce a subpoena and give the employer three days notice prior to the inspection.  In this scenario, a subpoena is not required by law; however, the employer may insist that one be produced.  Even if the government official refuses to produce a subpoena upon the employer’s request, the employer is entitled to three days notice under the current law prior to an inspection of its I-9 forms.
     While these four steps can help an employer minimize civil and criminal liability in the event of an unanticipated raid, an employer can best protect its interests by taking proactive and precautionary steps.  Through regular and systematic verification of employee identity and work authorization, an employer can avoid an unanticipated immigration raid altogether.  As the old adage states, the best defense is a good offense.