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February 6, 2025 | Legal Advisory

In light of the new administration’s focus on immigration-related issues, many employers are seeking guidance on how to best prepare for a potential U.S. Immigration and Customs Enforcement (ICE) raid. Employers are wise to educate their employees on the organization’s response protocol for an ICE visit, as well as to advise their employees of their rights should they be approached by ICE during a raid. Below are best practices for employers to avoid being caught flat-footed if ICE arrives at the door.

Get Prepared in Advance

As always, preparation is key to success. Employers should develop a protocol for a potential ICE raid, educate employees who will be involved, and practice for the event just like you would for a fire drill.

• Designate a Point of Contact to communicate with ICE agents.
• Prepare guidelines or instructions for your front desk receptionist or whomever else is likely to be the first person an ICE agent might come across and speak to so that the person knows to immediately contact the Point of Contact, as well as what not to do or say.
  • This employee – and others – can say “I can’t give you permission to enter. You need to talk to my employer.”
• Develop a protocol based on the below guidance and distribute it to involved employees, including guidance on documenting key information.
• Provide Know Your Rights trainings to employees with an emphasis on employee rights during an ICE worksite raid or encounter. These rights include the rights to remain silent, speak to a lawyer, and refuse to answer questions.
• Practice your response protocols which can ensure employees and the designated Point of Contact are prepared in the event of an ICE raid.
• Ensure private areas are locked or marked “private” or “employees only.” ICE agents cannot enter private areas without a judicial warrant signed by a judge or without consent of the employer.

When ICE Arrives: What To Do

• Call your attorney. If your attorney can go to the premises immediately, ask ICE agents to wait for the attorney to arrive before proceeding.

ICE Agents

• ICE agents can be in public areas such as parking lots, waiting rooms, or lobbies. However, if ICE agents are there without a warrant and start harassing employees or customers or interfering with your business’s operations, you can ask the agents to leave as you would with any other disruptive individuals.
• If ICE agents ask to or try to enter a private space, the designated Point of Contact should ask for a copy of the judicial warrant and read it carefully. (Note that an administrative warrant—which says “Department of Homeland Security” at the top—is insufficient to allow ICE agents access to private areas).
  • A judicial warrant will say “U.S. District Court” or the name of the state court at the top.
  • It should be signed and dated by a judge and will also include a timeframe for the search, description of the area to be searched, and a list of items to be searched for and seized.
  • The designated Point of Contact can accept the warrant but choose not to consent to the search. If you do not consent to the search, the search will proceed but you can later challenge the search if there are grounds to do so.
• 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 ICE does not agree, you can obtain copies later.
• Watch ICE agents to ensure they are complying with what is written in the warrant.
  • If ICE agents are searching areas not listed in the warrant, object to those searches and keep note. Do not block or interfere with ICE activities or the agents.
• Request reasonable accommodations as necessary:
  • If agents insist on seizing something that is vital to your operation, explain why it is vital and ask for permission to photocopy it before the original is seized.
  • If the officers ask to take computers or electronic devices that are covered by the warrant, you can request that the officers image the devices rather than seizing them.
  • If their seizure of any items will interfere with your ability to conduct your business, you should inform the officers and request that they not take the items but image/copy the items instead.
• If ICE agents present a valid search warrant and want access to locked facilities, unlock them.

Employees

• Instruct employees to stay calm. Fleeing can give ICE agents cause to arrest an individual.
  • You may inform employees that they may choose whether to speak with ICE, however, you should not direct employees not to cooperate with ICE or to refuse to answer questions.
  • Employees do not have to hand over any IDs or papers to ICE.
• Ask if your employees can leave. If they cannot leave, they have a right to an attorney.
  • Though you should not instruct your employees to refuse to speak to ICE, they also have the right to remain silent and ask for an attorney and do not need to answer any questions.
• If ICE arrests any employee, ask ICE agents where they are being taken. Provide this information to the employee’s family and ensure any money owed to the employee is paid.

After the Raid

• Ask for a copy of the list of items seized during the search. The agents are required to provide this inventory to you.
• Save any company surveillance taken during the raid.
• After a raid record the following: How many ICE agents were present, how they were dressed, if they were visibly armed, the name and badge number of the supervising ICE agent, the name of the U.S. attorney assigned to the case, whether agents made you or workers believe you could not move or leave, and if agents mistreated anyone.
• After a raid notify the employees’ union, if applicable.

When ICE Arrives: What to Avoid

• Do not allow ICE agents into private areas if they do not have a judicial warrant signed by a judge.
• Do not allow ICE agents into private areas if they show you an administrative warrant.
  • An administrative warrant which says “Department of Homeland Security” does not allow ICE agents to enter private areas without the employer’s permission.
  • If the agents do not present a valid judicial warrant, the designated Point of Contact should inform the agents that the employer does not consent to the agents entering private areas of the workplace.
• If ICE presents you with an administrative warrant with an employee’s name on it, you do not have to say if that employee is working that day or take the ICE agents to the employee named on the administrative warrant if they are working at that time.
• Do not help ICE agents sort employees by immigration status or the country they are from. Employees do not have to move if ICE tries to determine immigration status by asking employees to stand in groups by status.
• The officers may ask to speak with employees or move them into different areas to be spoken to. Do not interfere with the officers’ attempts to speak with employees.
  • However, you do not need to assist the officers in their request by, for example, providing information concerning any employee’s immigration status, national origin, or by identifying any specific individuals that ICE may be looking for.
• Do not hide employees or help them leave the premises.
• Do not provide false or misleading information, falsely deny the presence of named employees, or shred documents.
• Do not block or interfere with ICE activities or the agents if they have presented a judicial warrant.

What’s Next?

We are continuing to monitor future developments. If you have any questions about navigating this process, please do not hesitate to contact your Nutter attorney.

This advisory was prepared by Nutter’s Labor, Employment and Benefits practice group. For more information, please contact any member of the LEB group or your Nutter attorney at 617.439.2000.

This advisory is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.