If there is one enforcement shift to expect in the next year or so, it is an uptick in federal law enforcement moves designed to overwhelm the targets.  This means more search warrants (or “raids”) at businesses, especially those with a high percentage of foreign national employees who are not U.S. citizens.  But there’s more.

Those at risk are not just the foreign national employees themselves but anyone at the company deemed to frustrate law enforcement activity.  A new memo from the Office of the Attorney General laying out investigative and charging priorities emphasizes that “[f]ederal law prohibits state and local actors from resisting, obstructing, and otherwise failing to company with lawful immigration-related commands and requests,” adding that federal prosecutors “shall investigate incidents involving any such misconduct for potential prosecution, including for obstructing federal function. . .”¹

What does this mean?  The individual who interacts with the lead agent executing a search warrant, and who generally tries to ensure some kind of order at least until counsel shows up, could easily end up in the crosshairs as well.

Here are some reminders to keep your employees safe.

1. Have a designated individual (or two) to serve as internal point person with agents and experienced outside counsel in the event of a search warrant.
2. Make sure that the designated individuals have the contact information of the outside counsel whom they should call in the event of a search warrant.
3. On the day of a search warrant, obtain a business card/contact information from the lead agent, call outside counsel immediately, and connect him or her to the lead agent.
4. Counsel should confirm that non-essential employees can be sent home (or contacted not to come to the office if they have not yet arrived).
5. If counsel cannot get to the premises immediately, keep him or her on the phone and informed as to what transpires.
6. Make a copy of the warrant and send to counsel.
7. Do not consent to a search of any areas not listed in the warrant, nor to seizure of any materials not listed in the warrant.
8. Until counsel arrives, the designated individual should document the activities of the agents (without interfering with them) in order to debrief counsel on what occurred.
9. Ensure that employees understand that interviews are voluntary. They may ask for the agent’s card and politely inform the agent that they prefer to speak with counsel present, and that counsel will be in touch.
   1. This also applies if agents appear at your home. Ask for a card, do NOT invite them in, and politely inform them that you prefer to speak with counsel present.  Even if they say they have “just a few background questions” or “you’re not in any trouble.”  Even if it’s early in the morning and you want to be polite. Do not invite them in.  Ask for a card and politely say that counsel will be in touch.
10. If an employee needs to leave the premises or go to a different area for medical or childcare reasons, the designated individual should communicate that to the lead agent first. Avoid surprises, as they lead to escalating tensions and increase the risk to employees.