Your responsibilities when ICE arrives at your practice

Physicians Practice: All right, so say they’re looking for an employee or a doctor—say they’ve got visa issues. What is the employer’s responsibility, and what’s the liability if they cooperate a little too much or too little?

Katie P. Russell, J.D.: So there’s a lot there. And again, this is such a tricky area, especially nowadays. Folks want to follow the rules, but they also want to protect the people they’re employing, working with, or treating.

One important thing for a medical practice is that once an employee is hired, there are required documents and paperwork that need to be completed with their background information and proof of their ability to lawfully work in the United States. That’s the Form I-9. Every employer in the United States must complete one for every employee, and that form is designed to ensure that the individual you’re hiring can work lawfully in the country.

One thing we recommend is regularly conducting I-9 audits. Typically, HR maintains those records and fills them out, but sometimes the form can be confusing or the onboarding process can be hectic. It’s important to make sure all that documentation is together—in one binder or one accessible area—so you can flag any issues either with the form itself or with an employee’s documentation if they’re a noncitizen. That’s the first line of defense in protecting your employees.

If ICE shows up and says, “Hey, we want to see this employee or talk to this individual about their status,” employers have to walk a very careful line. They are not required to disclose any employee information without a valid legal request. The consent of that person would also be required if there isn’t a legal document granting that authority.

Doctors, staff—everyone in the practice—needs to understand that overcooperation, such as volunteering information or waiving rights, even inadvertently, can violate privacy laws and employee rights. It’s a big quagmire, and you don’t want to get yourself in trouble by trying to be overly cooperative.

Additionally, having a designated staff member who can field these kinds of questions is crucial. Ideally, you’ll have something in writing in advance—immigration or employment attorneys can help prepare documents so you don’t have to guess. But again, employers must be very careful about making any immigration-related disclosures without the employee’s consent and without consulting an attorney to ensure it doesn’t create legal issues.