With the Trump Administration’s continued emphasis on enforcement of U.S. immigration laws, employers are increasingly concerned about worksite raids. In certain circumstances, immigration law enforcement officials will make arrests and detain workers. Benefit plan administrators should consider how such detained workers are treated under company benefit plans. For additional information regarding how an undocumented worker could become a plan participant, see here.
What happens when a worker is detained? Can a detained worker be released later?
The U.S. Immigration and Customs Enforcement (ICE) addresses these questions as follows:
Detention is non-punitive. Once an alien is transferred to ICE custody, the agency makes a custody determination. ICE uses its limited detention resources to detain aliens to secure their presence for immigration proceedings or removal from the United States — as well as those that are subject to mandatory detention, as outlined by the Immigration and Nationality Act, or those that ICE determines are a public safety or flight risk during the custody determination process.
When an alien is not subject to mandatory detention or is not deemed to be a public safety or flight risk, ICE exercises its discretion in making custody determinations to release aliens with conditions. These custody decisions are made on a case-by-case basis and after considering the totality of circumstances — primarily considering risk of flight, national security threat,...
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