As I knew would happen, with the onset of Trump 2.0, the calls have been coming in. From both employers and their employees. What happens if Immigration & Customs Enforcement (“ICE”) comes to my business? What happens if ICE shows up at my home? People are anxious. I get it.
Here’s what we know, and admittedly, some of this is anecdotal. First, no surprise here, on or shortly after the inauguration, now President-elect Trump will sign an executive order that temporarily closes the southern border. The idea is to give border agents a pause to catch up on some backlogs. The chaos will be great, and the uproar from advocates will be greater.
Then what? We’re reading that Trump will implement a three-phase deportation effort, as follows. Step one will be a targeted effort to arrest and remove undocumented individuals with ties to criminal gangs (e.g., Venezuelans, Haitians, Cubans and Nicaraguans). Step two will be a concerted attempt to remove plus or minus one million people whose applications to remain in the U.S. have been denied and who are awaiting final removal. Step three, although indicated to be third, is much more ominous (to me, anyway). This will involve targeted enforcement activities to round up and remove millions of undocumented workers at places of work (e.g., farms, meatpacking and poultry processing plants, restaurants, etc.).
We are told, and it completely makes sense from a strategic priority sense if you’re in Trump-world, that ICE and Customs & Border Protection (“CBP”) will target employers who are in industries with histories of knowingly hiring undocumented individuals, and they will, on a federal level, and in cooperation with some friendly red-leaning states, make efforts to terminate their business licenses, seize their assets, and so on. The intent here is to send a strong message to those businesses (and the larger industry sectors they are in) and candidly to other businesses operating just down the street (so to speak).
What Should Employers and Their Employees Do to Prepare?
So, what should employers or their employees do if ICE walks into their place of business or comes knocking on the doors of their homes? Well, beyond knowing your rights, first and foremost, have a plan in place (both employers and employees). There are a lot of terrific resources online. There are plenty of bad ones too. Make sure you look at something credible.[1]
For Employers
For employers in industries that often hire undocumented workers, preparing for potential visits from ICE begins with creating a detailed and actionable plan. ICE may visit a business for various reasons, including conducting a Form I-9 audit, executing a raid, or detaining specific employees suspected of immigration violations. A proactive approach includes understanding the types of enforcement actions ICE may take on your business and tailoring your response plan to address each scenario effectively. This preparation is critical not only for ongoing compliance purposes, but also for minimizing disruption to your business operations (and, candidly, employee morale).
Start by drafting a written response plan that outlines step-by-step procedures for various ICE actions. The plan should address how to handle Form I-9 audits, including ensuring your employment eligibility verification records are up-to-date and accurate. Assign specific roles to staff members, such as designating a point of contact to interact with ICE agents and legal counsel. In the event of a raid, the plan should detail how to manage the presence of ICE agents on your business premises, ensuring that your employees understand their rights, and securing access to legal resources for those affected. This preparedness will help safeguard both your business and your workers.
Training your employees on the response plan is also equally important. Hold regular training sessions to ensure that all your employees understand the procedures and their rights in the event of an ICE visit. For example, employees should know that they are not required to answer questions or provide documents to ICE agents without a judicial (not an administrative) warrant. Similarly, management should be trained as to how to review and verify the legality of warrants or subpoenas. This type of training will foster a sense of security among your employees and should ensure a coordinated response during an ICE encounter.
Finally, consult with an immigration or labor law attorney to review your policies and ensure compliance with all applicable laws. A qualified attorney can help you audit your Form I-9 records, address vulnerabilities, and provide guidance on best practices for handling ICE interactions. Additionally, maintaining open lines of communication with your workforce about their rights and your business’s commitment to legal compliance can help build trust and reduce anxiety. A comprehensive and well-communicated plan can protect your business immensely.
For Employees
For individuals who are undocumented and at risk of deportation or removal by ICE, the most important first step is to develop a comprehensive plan if you’re picked up.
A good start is to organize your personal documents, such as identification, birth certificates, passports, and any immigration paperwork. Ensure that these documents are stored in a secure and accessible place and consider giving copies to a trusted friend or family member. Additionally, compile any evidence that may support your immigration court case if removal proceedings occur, such as proof of residence, work history, or community ties. Staying organized can make a significant difference if you find yourself before an immigration judge.
In addition, although self-serving, consulting a qualified immigration attorney is also essential. Look for an attorney experienced in removal and defense work who can review your situation and identify potential forms of relief. This might include options such as asylum, family-based petitions, or cancellation of removal, depending on your circumstances. Avoid notarios or unlicensed individuals at all costs; these individuals will offer you services without proper qualifications, and in doing so, they can put your immigration case and your future ability to remain lawfully in the United States at risk. Preparing early with competent legal advice should ensure you understand your rights and any available legal pathways that may be available to regularize your status.
If you or your family members have medical needs, consider preparing documents that allow others to assist in your absence. For instance, you can complete a HIPAA release form that gives a trusted person access to your medical records and permits healthcare providers to communicate with them about medical needs. (This can also help you in preparing a case before an immigration judge that may require your medical or other health records.) This can be critical if you rely on treatment or medications, or if you care for a family member with medical challenges. Planning ahead will ensure that continuity of care is maintained even if you are unable to address these needs personally.
Finally, for those at risk of being picked up by ICE, think about the daily well-being of your family, including childcare and financial arrangements, if you’re not available. Identify someone you trust to take care of your children if necessary and provide them with written authorization to do so. Discuss financial matters to ensure that bills, rent, or other financial obligations can be managed in your absence. Establishing a power of attorney for someone to handle financial or legal matters on your behalf can also be a wise step. Preparing for these possibilities not only provides peace of mind but also ensures your family is supported and protected during challenging times.
Being informed and prepared are the first and most steps to take during these stressful times. Employers and immigrants who understand their rights, who take these first steps, and who seek legal guidance when necessary, will be way ahead of the game as they safeguard the future of their businesses and families if ICE shows up at their doorstep.
[1] For example, Immigration Advocates Network (https://www.immigrationadvocates.org/); Immigrant Defense Project (https://www.immigrantdefenseproject.org/); Catholic Legal Immigration Network (CLINIC) (https://www.cliniclegal.org/); National Immigration Law Center (https://www.nilc.org/); Surveillance Resistance Lab (https://surveillanceresistancelab.org/); Make The Road (https://maketheroadny.org/); American Immigration Lawyers Association (https://www.aila.org/); Prisoners Legal Services (Albany Office) (https://plsny.org/); National Immigration Law Project (https://www.nelp.org/); and New York Lawyers for Public Interest (https://www.nylpi.org/).