by Stephen Davis and Joey A. Chbeir
U.S. Immigration and Customs Enforcement (“ICE”) is in the process of hiring approximately 10,000 additional ICE officers. Many of these will be assigned to investigate workforce compliance with immigration regulations. Tom Homan, the deputy director of ICE, said at a December 2017 press conference that he wants to see a “400 percent increase in work site operations.” Now is the time for banks, like other businesses, to train their employees how to respond to an in-person ICE investigation. The investigation could include ICE serving an I-9 audit notice, conducting an unscheduled (i.e., unannounced) workplace investigation or both. Below is a list of suggested best practices should ICE officers appear at your bank. The steps listed below provide a framework for cooperating with federal immigration authorities while balancing the need to adhere to the requirements of bank regulators and the need to protect sensitive and privileged information.
Go ahead and designate a bank representative (and a back-up) to handle any ICE investigation.
If an ICE officer arrives at your bank, politely ask if you can provide the officer with a centralized location (such as a conference room) from which to conduct the investigation.
Contact legal counsel and your prudential regulators as soon as possible after the ICE officer arrives. Explain to the officer that it is the bank’s practice to notify its lawyer and regulators regarding any such investigation.
If the ICE officer presents an I-9 audit notice, you have three days to provide the bank’s I-9 forms. The bank has the option to waive the three-day notice period in the I-9 audit notice, but we don’t recommend this. If the bank waives the three-day notice period, it must provide the I-9 forms to the ICE officer immediately and you will not have the opportunity to check that all I-9 forms are provided.
If you elect to provide the bank’s I-9 forms to ICE within the three-day period, ICE will usually give the bank the choice of mailing the I-9 forms and related documents or having an ICE officer come back to the bank in three days to inspect the I-9 forms. We suggest that the bank elect to mail the forms.
An ICE officer has the right to enter all public areas of the bank. If the ICE officer wishes to inspect any area of the bank that is not open to the public, the officer must either show a valid search warrant or the bank must grant permission.
You should ask the ICE officer for time to review the search warrant and make a copy. It is important to make sure that the search warrant is signed and dated by a judge. If the officer will not allow you to copy the warrant, make a list of documents requested, which usually include I-9 forms, payroll documents, and other personnel files related to bank employees.
You should be mindful of the scope of the search warrant throughout the entire investigation. If the ICE officer attempts to search and seize documents not listed in the search warrant, remind him or her of what items are within the scope and object to the search and seizure of any documents or items not listed. You should document these objections and give a copy of your objections to the agent.
You should accompany the ICE officer around the bank. You should also take good notes regarding what the ICE officer inspects, what he or she seizes and who he or she talks to or interviews. If the ICE officer insists on taking documents that are essential to the operation of the bank, explain the significance of the documents and ask to make copies.
The ICE officer may ask to search documents that constitute Confidential Supervisory Information (“CSI”), are designated as attorney-client privileged, material, or are otherwise confidential. If the ICE officer insists on seizing these documents, make copies and ask that the documents be segregated pending communication with counsel and permission from your regulators. If the ICE officer insists on seizing the documents and refuses to allow you to copy them, take notes regarding which confidential materials he or she seizes.
Make sure to ask the ICE officer to have any follow up requests for information by ICE set out in writing.
Compliance with the law is the priority. When faced with an ICE audit or on-site investigation, you should provide cooperation consistent with your bank’s obligations under governing laws and regulations.
Stephen D. Davis II, Shareholder, Maynard Cooper’s Huntsville Office whose practice focuses on Immigration & Litigation. Stephen’s specialties include employment based immigration and helping companies obtain temporary and permanent work authorizations for foreign nationals. Joey A. Chbeir, of counsel, Maynard Cooper’s Birmingham Office. His practice involves Immigration, General Litigation, International Trade & National Security. Joey’s practice includes assisting globally based companies establish businesses in the United States.