The Administration recently revoked a longstanding policy that restricted federal immigration authorities from carrying out enforcement activities at “sensitive locations,” including health care facilities. As a result, Immigration and Customs Enforcement (ICE) can now enforce immigration laws in these settings. This updated policy has left some health care and senior living providers and employers with questions about how to handle ICE interactions effectively and in compliance with the law, as well as how best to assist residents, families and staff members fearful of or struggling with these actions.
Background
First, it’s important to understand the umbrella of ICE and its enforcement abilities.
- Homeland Security Investigations (HSI) handles criminal investigations. Agents may present judicial warrants that are court issued and signed by a judge.
- Enforcement and Removal Operations (ERO) handles administrative investigations, and their warrants are issued by the Department of Homeland Security (DHS). Administrative warrants do not provide legal access to non-public areas.
- I-9 Audits: An I-9 audit is a separate process from an ERO investigation to ensure that employees are authorized to work in the United States. An I-9 audit starts when an ICE agent or contractor contacts the employer to deliver a Notice of Inspection (NOI). The NOI will request specific documents, including I-9 forms for current employees.
What are non-public areas?
Non-public areas include resident rooms, treatment rooms, any areas that are not accessible to the public, and any areas with a sign stating that the area/room is private and not for public access. The only public space(s) in the center may be where the public can enter and exit the building and the reception/waiting area.
Tips on How to Prepare for a Possible ICE Visit:
- Designate Personnel: Designate a person/s that any employee who first comes in contact with an ICE agent should alert. Accordingly, all employees who may be in the position to be the initial contact person (receptionist or nursing station, as examples) should be given the name and contact information of the designated personnel. The designated personnel ONLY should then interact with the ICE agent during the visit. Have a plan in place with your legal counsel and this appointed individual/s on how to handle this situation.
- Ensure I-9 Compliance & Prepare Other Employee Documentation:
- Ensure that you are using the current version of Form I-9 and double-check that your staff are authorized for their positions.
- Ensure that documentation for your staff is well-organized and available for review during a site visit. The following should be organized and readily accessible:
- work visas, work permits, U.S. Citizenship and Immigration Services documentation or Immigration Court notices;
- job descriptions, historical lists of workers, payroll and tax records, company ownership information, staffing vendor information;
- I-9 forms, copies of identity and authorization documents presented by employees, etc.
- Ensure that any documents that may disclose employee personal or protected data and that are not otherwise required to be maintained in the I-9 file are not included. It is good practice to keep 1-9 records separate from employee personnel files.
- Check state laws which dictate what must be maintained as part of a “personnel file” and ensure the personnel file is compliant.
- For Individuals: Encourage residents and employees to have their work permits and a copy of the U.S. Citizenship and Immigration Services documentation or Immigration Court notices on their persons at all times so that they can present them if requested by ICE officers. For residents with diminished cognitive function, the facility should consider organizing and holding this paperwork. Although individuals have certain rights, especially if not specified on a search warrant, having this documentation readily available may minimize the risk of being taken into custody as collateral detainees.
What To Do During an ICE Visit:
- Be Calm, Composed, and Cooperative:
- Ask the agent to step into a quiet space away from residents, nursing station and high traffic areas.
- Ask for their information (name, title, badge #, government agency). Request their legal documents.
- Review The Warrant: Determine if it is criminal (judicial warrant) or civil (administrative warrant). Again, HSI handles criminal investigations, and ESI handles civil. Review the warrant carefully—other types of law enforcement agencies (FBI, DEA, etc.) are permitted to be involved in immigration enforcement actions, which may make warrants harder to decipher. This resource from the National Immigration Law Center provides examples of judicial warrants and immigration warrants (pages 21-22).
- If no warrant is presented: You are under no obligation to present the individuals as requested or allow the agents to enter to question or detain anyone. Simply ask the agents to return with a warrant. In practice, the agents may simply hang out in the parking lot and stop/question individuals as they enter the facility.
- If it’s an administrative warrant issued by DHS: Agents cannot enter any non-public areas without your permission. Facilities are not required to lead ICE to a named individual on a warrant nor say if the individual is present. However, in an effort to minimize exposure to the business and others, providers may wish to cooperate.
- If it’s a judicial warrant signed by a federal court judge: The warrant will specify the location where the agent is permitted to enter to arrest a specific person.
- If it’s an I-9 Audit/Notice of Inspection: The employer will have 72 hours to provide ICE with the I-9 forms. Therefore, the employer should contact counsel immediately upon receipt of a NOI in order to request an extension and work diligently to review and prepare the documents for production.
- Monitor for Proper Execution of the Warrant: The personnel designated to interact with ICE agents during a visit should ensure that agents access only the areas and documents specified in the warrant. Do not physically block or interfere with the agents, but ensure that
they follow legal protocols, such as not entering non-public places without a judicial warrant.- If the judicial warrant has a description of the area to be searched and it specifies access to a private area, then they can search the private area. But the facility does not have to consent to the search. If the facility does not consent to the search, they need to tell the officer they do not consent to the officer’s access to the private space. The facility should document that they informed the officer they don’t consent. This means that ICE can perform the search, but the facility can later challenge the search if there are grounds for a challenge. The facility should monitor the officer to ensure they are only accessing the area specified in the warrant.
- Confirm What Information Should Be Provided: Before providing any information to an ICE officer, the warrant should be reviewed to determine what type of information or documentation is requested and whether the facility or its employees are authorized and required to provide the information under the law.
- Healthcare facilities or employers are not required to share information or patient records regarding the legal status of a patient without a warrant signed by a federal judge.
- Federal and state privacy laws, and potentially internal policies of the facility protect certain types of patient data (like personal and personally identifiable information) in records or the records themselves from being disclosed.
- If the facility staff doesn’t know whether information/data can be disclosed, they should tell the officer they are not obstructing the officer’s process, but they need a copy of the warrant or subpoena and they need to contact legal counsel for assistance.
- DOCUMENT all interactions with the officers, including areas visited and documents seized.
- Notify Loved Ones: If any workers or residents are taken into custody, notify their families/emergency contacts.
Assisting Staff & Residents
Staff and residents in long term care facilities often become like family. The threat of an ICE visit can trigger anxiety or fear, and an actual ICE visit could be a traumatizing event for those in the facility. So, proper preparation, care, and consideration should be given to both residents and staff. Some techniques facilities could deploy include, but are not limited to the following:
- Conduct routine screenings of residents to determine if trauma has occurred as a result of an ICE visit.
- Nursing homes are required, per regulation, to have trauma-informed care in place for residents. Train staff (both clinical and non-clinical) on trauma-informed care. This should include how to identify trauma and how best to treat it. Since there is no universal definition of trauma, this makes it particularly important to educate staff on examples.
- These visits could affect staff as well. Facilities should promptly recognize the staff’s trauma and help, where appropriate. Human Resources (HR) should be involved in these conversations to ensure you are not infringing on any privacy rights of the employee.
Employers can empower their staff by addressing concerns and providing compassion and support.
Additional Resources
- National Immigration Law Center
- Warrants and Subpoenas: What to Look Out for and How to Respond
- Employer Guide: What to Do If Immigration Comes to Your Workplace
- Know Your Rights | Immigrants’ Rights | ACLU
- Understanding Race-Based, Historical, and Intergenerational Trauma in Nursing Facility Residents
- Building Employee Resiliency through Person-Centered Approaches