ICE on Jobsites: Have your House in Order and a Plan in Place
In this interview, Pro Remodeler associate editor Tyler Rhyan speaks with immigration attorney Kathleen Campbell Walker about how construction companies can prepare for and respond to ICE inspections or raids. The conversation covers employer responsibilities in verifying work authorization, how to handle warrants and subpoenas, best practices for site protocols, common mistakes during enforcement actions, and the broader legal and industry context shaping immigration compliance.
DISCLAIMER: it should be noted that Walker is not legally allowed to provide counsel and that the information she has provided us with is strictly for the purposes of education.
Video Transcript:
Tyler Rhyan: What can construction crews do to keep their workers protected from ICE raids? What are the most general instructions you would give?
Step 1: Make sure your hiring process is compliant
Kathleen Campbell Walker: First of all, you need to know what your workforce is. If, for some reason, you have a problem in your intake process when you have onboarding of new hires, you’re supposed to figure out their work authorization as well as their identity when you complete a Form I-9. Some employers will also be utilizing E-Verify to help in that process—sometimes it’s mandated, sometimes it’s voluntary, depending upon where you are.
The first thing is your workforce. If you have a documented workforce and you feel comfortable with that, then already your protection level is higher because you’ve done the appropriate due diligence to know your workforce.
Many law enforcement agencies cooperate with ICE, some may not know the proper protocol
Now, let’s talk about a situation where you’re going to have a raid. A raid really means that ICE, as well as other law enforcement agencies that now cooperate with ICE, are involved. Many law enforcement agencies cooperate with ICE; some may not know proper protocol. It could be DEA, ATF, or local law enforcement. You have a coordination that we haven’t seen in the past. Some of these officers may not really be trained in any kind of immigration compliance.
All they’re doing is being pointed and told, “Go arrest” or “Go ask questions.” That’s a problem because you’ve got enforcement without federal training being unleashed to try to help in this enforcement effort. So how do I protect against a raid? First, I need to know my workforce. But let’s talk about the typical enforcement actions you might see.
There is a difference between rights in public areas and rights in private areas. Private property can be posted
You might see law enforcement come to the office and say, “I’ve got a warrant,” or “I’ve got a subpoena for John Doe. I need to talk to John Doe.” You’re going to have to figure out, as the employer, what access you’re going to provide. There is a difference between rights tied to public access areas versus private access areas. If I’m talking about a general parking lot, that’s very different from, for example, the manufacturing plant work area where it’s not accessible and you have signs up saying not accessible to the public. Private property can be posted, and then you have additional protections before you allow law enforcement into those areas.
Important to know the difference between a subpoena, warrant, and a judicial warrant
You’ve got to figure out: What am I being presented with? Is it a subpoena? Is it a warrant? Is it a judicial warrant or not? You have to be able to recognize that. Then you have to have a protocol in place where your public face—typically a receptionist, or it could be where workers report to start their workday—knows what to do. If law enforcement is coming to that location, they’ve got to have a backup to figure out: Who do I call to provide access, and do I provide access?
Develop a protocol for dealing with ICE: In a building, the receptionist may be the first line if defense
If you are going to provide access, then you’ve got a protocol to follow about recording what’s being done. In some cases, you might try to do a video of what’s happening.
Recording the interaction on video is helpful in sorting things out on the back end. Fixed cameras and cell phones can work
Hopefully, you’ve got cameras that can also help you out in recording what happened on the work site floor. First step: you’re creating separate layers of how you react to the type of enforcement action you’re presented with—where it’s happening, what document is being requested, what access is being requested, and then what’s my company protocol to follow.
Set up an alert phone number in case of ICE raid or inspection; first-line employees should understand protocol
Usually there’s basically a hotline—an alert number, a reporting number—that I call when I’m faced with this so I know how to react. But the problem is you’re juggling between: How am I going to cooperate or not cooperate with what’s going on here? What are my exposure risks if I don’t? And then what am I going to do if I decide to say no? It can have consequences as far as escalating potential enforcement activity.
Some employers choose to do a “know your rights,” and in some cases it’s actually a requirement under state law; it depends on where you are.
"Know your rights" training sessions are a good idea
Doing a know-your-rights presentation to employees—saying if somebody accosts you in a public area, in our parking lot, here’s what your rights are to not cooperate or to not provide information. Otherwise, if we request that you come into our office, for example, in an I-9 audit where you’ve been told by Homeland Security Investigations, “Wait a minute, John Doe, we believe, is not here lawfully,” and yet you’re looking at your I-9 form and it shows that you properly looked at the identity and work authorization documents—it looks okay to you. You’ll have an obligation to communicate with the workforce and say, “We have an audit going on. I need to understand whether or not our information is correct. I don’t want to alarm you, but we need to verify.” In some cases, that causes the employee to leave if they happen to be not work-authorized and perhaps presented somebody else’s documents or fake documents to you. It’s a real conundrum.
TR: How much would you say having a plan in place affects the outcome of the raid?
Having a plan in place can deeply affect the outcome of jobsite inspection or raid
KW: I think it has a 100% effect because you’re not surprised. What can happen is that you can be presented with just a notice of inspection and somebody decides, “I’m just going to cooperate.” You provide access and you’re talking to people. I’m not saying that people are lying, but I’m saying that people don’t understand what the questions are, and then they provide a response that’s only part of the answer, which causes more concern for the enforcement officer. I’m talking about having accurate information available, and in a crisis situation, that doesn’t necessarily happen readily.
Raids, to me, are the minority of kinds of engagement you see with law enforcement on a work site. The more common types are where you’ve got a subpoena or warrant, or you’ve got a law-enforcement officer requesting information—for example, maybe they’re enforcing a child support order and they come to the work site because they believe it’s easier to find the person there. As an HR manager or a site manager, you’ve got to have a procedure: “Look, I’m not going to assist you in this effort to contact my employee.” They may wait out in the parking lot until the person comes outside, and now they’re in a public area. I don’t need to be surprised and figure that response out on the fly.
TR: How often should crews review or practice the steps in their plan to ensure they know what to do if they ever need to use it?
Run through the plan to reduce errors during actions
KW: It depends on your team and how often a refresh is necessary. Part of a good-faith compliance effort—which is important in assessing potential penalties after an I-9 inspection—is demonstrating that your management team is comfortable dealing with enforcement interactions.
If I’m the enforcement officer and I’ve given you a subpoena, and you comply readily, that can help later in reducing the penalty amount assessed against you. Normally, penalty assessments look at your overall workforce and I-9 compliance. If you’re at a certain percentage level of error, that triggers a higher penalty. If you figure out those errors in advance through internal audits, that helps reduce penalties.
How often to refresh? It depends on your management team, but I’d say at least twice a year. Some employers have people watch videos; some use a test to document that training is being done. Showing compliance and follow-up is good for accountability.
"Really high stress levels in the US due to a variety of enforcement actions."
TR: Do you have any tips on dealing with stress or anxiety should a raid happen at your work site?
KW: I wish there were an easy answer. We’re at a high stress level in the U.S. on a variety of enforcement actions, and employers aren’t always sure what the rules are. Things change day to day. For example, when Temporary Protected Status ends for certain workers, their work authorization ends. That creates a “What hoop do I have to jump through next?” situation.
Education and lawyers can help reduce stress in the thick of the commotion
Regular education helps. Having lawyers—if you choose to use them—can provide backup and a clear process to follow. That reduces panic about how to respond, what questions mean, whether something is really an error, and what penalty amounts you might face. You don’t want to learn about this after the fact. Preparing reduces stress.
TR: If the matter is taken to court, do crews that push back or refuse to comply generally face harsher rulings? Is there retaliation?
Knowingly hiring undocumented workers is a crime and can lead to criminal proceedings
KW: Let’s talk about how this goes to “court.” On a work site raid, a manager can be exposed if there’s constructive knowledge or actual knowledge that an unauthorized workforce is being used. If I have constructive knowledge that I’m using an unauthorized workforce, I can be exposed to jail time. That’s criminal, and you’d need criminal defense counsel—very different from the typical administrative enforcement action.
Typically, you start with Homeland Security Investigations, negotiate fines, and may challenge those fines in an OCAHO proceeding (Office of the Chief Administrative Hearing Officer), where you present your case for a lower fine. That’s different from a criminal case alleging you facilitated undocumented workers knowingly—through actual or constructive knowledge based on information you had.
Providing housing or transportation to workers you know are undocumented can mean criminal harboring charges
Don’t become an ostrich and put your head in the sand. Constructive knowledge can come from no-match letters, mismatches between withholding records and I-9s, two or three employees using the same Social Security number, or many employees using the same address. If you’re providing housing or transportation for workers and you have constructive knowledge they’re undocumented, you can be exposed to criminal harboring charges. Trucks can be confiscated; assets can be seized.
Make sure you can do without your hard drives; if seized, your business shouldn't be hobbled
When preparing for raids, make sure you can operate as a company even if hard drives are seized. If they come in with a raid, they can take documents, computers, and records. Keep critical operations in the cloud so you can continue to operate if a seizure happens.
TR: What is the most common mistake that crews make during raids, and how does it affect the outcome?
Biggest mistake you can make: Speaking off-the-cuff without knowing exactly what to say
KW: People may speak off the cuff without knowing the protocol. In an extreme raid, entrances and exits can be shut down. Officers in black jackets with weapons may come in with judicial warrants, take assets, access the work site, make arrests, and use zip ties. That’s an extreme situation. More often, circumstances are much more low-key.
In an extreme raid, if an employer has constructive knowledge of an undocumented workforce, the bottom line is that management must tell the truth when speaking to law enforcement. Otherwise, you risk obstruction of justice. If you are undocumented, you have the right to say nothing.
From an employer perspective, if workers are communicating because they’re scared—and often they will be—and their activities are not lawful, you shouldn’t be surprised later. You’ve already taken the risk of potential criminal exposure if you are facilitating undocumented work. The big issues are knowing your workforce and having a protocol. The biggest errors happen on the ground when people provide inaccurate information because they’re caught unawares and don’t know the process or how to react.
Lying to law enforcement is a crime and can lead to obstruction of justice charges
No lawyer can recommend lying to law enforcement—that’s a criminal act. People need to provide accurate information. If you’ve been operating outside legal requirements, undocumented workers may tell law enforcement the truth: that someone helped smuggle them, didn’t check documents, or provided documents. You’ve set yourself up as a prime target.
Realize also that workforce grievances—a U.S. citizen or lawful permanent resident calling HSI, or a competitor reporting suspected undocumented workers—are common pathways to investigations or potential raids if the conduct is egregious.
TR: What are the best safety or security precautions job sites can take during these events?
Fixed cameras on the jobsite and/or designated camera person/notetaker to document identity information of officers at the beginning
KW: If you have cameras, use them to record what actually happened. Have someone responsible for recording events or at least taking notes. At the very beginning, request the identity information for any officer engaged in enforcement.
Beware of fake police: vigilantes who set out to intimidate people based on how they look
Be aware: there are vigilantes who are not law enforcement who may try to approach people they believe are undocumented and intimidate them. You need security for your workforce and work site so you aren’t harmed by people with no authority to act. Be aware those people are out there. Have security and cameras to record anything egregious on your work site.
TR: Are there any notable tactics that ICE uses that crews should be aware of?
Homeland Security is data-mining more than ever before
KW: They rely on the public to provide information and are data-mining more than ever. Social media posts are being reviewed. In Houston, on one construction site, an individual put on someone else’s company hard hat and recorded a YouTube video baiting HSI to “come get me.” That posting resulted in a raid the next day. Be aware your social media footprint is being reviewed for potential enforcement actions, and control what is allowed to be posted.
TR: What does the current landscape look like in terms of raids? Are more sites being hit now? Which states or areas are targeted most?
Because more agencies are enlisted and the administration's focus, "inspections" are up, "raids" are (so far) about the same
KW: It’s similar to the past, but a bit more expansive because HSI’s capacity has effectively increased via involvement from other agencies—DEA, ATF, and local law enforcement in some areas. That has expanded the capacity to investigate.
I don’t believe raids per se are on the uptick, but notices of inspection definitely are—like the restaurants in Washington, D.C., or an agricultural business in Arizona. Typical industries—restaurants, hotels, agriculture—remain common targets where undocumented workforces have historically been used.
Expect more no-match letters, where info on I-9 and W-2 does not match, as ICE mines Social Security info
You’re also going to see more no-match letters and more reactions to potential fraudulent Social Security numbers or multiple uses of the same number. There’s now an agreement between DHS and the IRS concerning mining of Social Security data, which wasn’t really done before, except in true criminal investigations.
Get your house in order. Make sure your compliance protocol is ready. If you do it in advance, your exposure to heavy penalties and potential criminal actions is reduced.
TR: Is there anything building associations can do with their local public officials to combat deportations that happen as a result of these raids?
KW: Let’s talk about that fact pattern. I’m supposed to know my workforce. If I’ve figured out that I’ve got an undocumented worker—or a worker subject to deportation due to past actions—I’m not supposed to facilitate someone remaining illegally in the United States. That’s a different criminal action.
At the association level, the most constructive path is advocacy: emphasize that there are genuine work-site needs, that the immigration system is a mess, and that we need to make legal the norm. Many employers didn’t realize a valued worker was undocumented until it was too late. We need immigration reform that connects legitimate economic need with immigration policy and procedure. Right now there’s a disconnect. In construction, reliance on undocumented labor has long been documented. Let’s get with reality and fix the law.