Providers must ensure that the person who brings the child to, and removes the child from, the child care facility signs the child in and out. The person who signs the child in and out must use their full legal signature and record the time of drop-off and pick-up. Providers should keep sign-in and sign-out sheets with the required signatures for at least a month unless for example they are required to keep the sheets longer per the requirements of a subsidy agency.

If the child’s parent is deported and the child is being taken care of by another caregiver, the caregiver should sign the child in and out of the child care facility. The sign-in and sign-out sheets with the caregiver’s signature should be sufficient for the provider to receive payment from subsidy agencies.

A child’s absence from a child care program may be excused in the case it is considered a “family emergency” or when the absence is “in the best interest of the child.” Child care providers must adopt reasonable policies that outline the circumstances that qualify as excused absences. 1 Providers should then communicate these policies to parents.

A parent’s decision to keep their child at home due to fear an immigration sweep may be considered an excused absence. Parents and providers should note that absences “in the best interest of the child” cannot exceed ten days for the contract term. Attendance records should always include the name of the child, the date, specific reason for the absence, and the parent’s signature or the provider’s signature if verification of the excused absence is made over the phone.

Unless child care is abandoned (when a family has not used child care nor been in communication with the provider for seven (7) consecutive calendar days and has not notified the provider of the reason the family is not using services), the provider should be paid according to the plan established when the parent first enrolled the child, regardless of the child’s actual attendance. Providers should review their subsidy agency’s handbook for more information and note that there may be limits on how many excused absences the agency will pay for during any particular contract term.

We all have constitutional rights regardless of our immigration status. These rights are also applicable to family child care businesses, including those that offer federal or state subsidized child care. These rights include the right to ask immigration agents to identify themselves, the right to stay silent, the right to document and record the event, and the right to ask for documentation and deny entry into private spaces without a judicial warrant. Additionally, because family child care providers are operating their businesses out of their homes, which are considered private spaces, they can deny immigration agents access to their homes if the agents do not have a judicial warrant.

If a child care provider has a two weeks’ notice requirement for withdrawal in their contract and a family breaches the contract by not providing two weeks’ notice, the provider can try to enforce their contract by 1) using a deposit the family may have paid during enrollment in order to cover any unpaid fees (if the provider required a deposit under the contract); or 2) writing a demand letter to the family giving them a specific deadline by which to make the payment and then filing a small claims lawsuit against the family if they do not make the payment by the deadline. See more information about filing small claims lawsuits here.

Providers should always try to ensure all children in their care have multiple emergency contacts/authorized pick-up persons.

Providers who retain a child past the child’s normal pick-up time due to a parent’s detention may risk non-compliance with staffing ratios and/or capacity limits based on the provider’s child care license. However, a parent’s detention may be considered an emergency. The provider should immediately contact their licensing analyst for guidance and file an Unusual Incident/Injury report (Licensing Form 624B) with Community Care Licensing.

Once a provider has attempted to contact all individuals on the child’s emergency contact/authorized pick-up list, the provider should document the situation to justify the need for emergency extended care. Documentation should include the child’s name, the date and time when extended hours were required, and any relevant details known about the parent’s detention. Providers should also record their efforts to reach all authorized individuals and emergency contacts. If a substantial amount of time has passed without successfully contacting any emergency contacts/authorized individual, the provider should contact the non-emergency line of the local law enforcement agency or child protective services.

Providers should remain calm and provide reassurance to children, ensuring that they are and feel safe. Providers should make efforts to minimize any contact between children and immigration agents, such as guiding children inside or positioning them out of the agent’s view. Providers should then adhere to their established procedures and written policies for interacting with law enforcement/immigration agents. Further guidance on immigration agent interactions and sample policies are available here.

Though a family child care provider may not own their home, they control the space where child care is provided. A family child care provider generally has a reasonable expectation of privacy in their home, which means that an immigration agent would need a judicial warrant to enter the home. If immigration agents arrive, the provider should request to see any warrants and follow established protocols for interacting with law enforcement. It is important to document all interactions with ICE with as many relevant details as possible.

The Center for Law and Social Policy (CLASP) has created a guide to creating safe space policies for early childhood programs, which can be found here. Providers should also make sure they update emergency contact and authorized pick-up person information for children in their care, and encourage families to create emergency plans for their children’s care.

Permanent residents are required to carry proof of their immigration status at all times, and a green card serves as this proof. Individuals should carry their green card to protect themselves from the risk of detention or arrest. Having necessary documentation can help ensure that interactions with law enforcement proceed more smoothly. Providers who present their green card and are ignored should politely hand the agent their green card, emphasize their legal status, and ask about the reason they have been stopped and/or questioned. Also calmly inform the agent that you would like to remain silent and that you do not consent to any searches. If issues continue, record the agent’s badge number and name and contact legal counsel when it is safe to do so.

You may refer to this resource and this resource for questions about work authorizations and I-9 audits.

If a child has an urgent medical issue, the provider should immediately contact the child’s parents/guardians to notify them. If a provider has the parents/guardian’s permission, they may seek emergency medical care for the child. This form can be used to get permission for emergency medical care. The Emergency Medical Treatment and Labor ACT (EMTALA) is a federal law that requires hospitals with emergency departments to screen all patients, regardless of their immigration status, to determine the appropriate course for treatment. If the hospital finds that the child has an emergency medical condition, it must either provide necessary treatment or arrange a safe transfer to another facility. The goal of the EMTALA to ensure that everyone has access to the necessary emergency medical services.

Providers with Limited English Proficiency (LEP) – those who have limited ability to speak, read, write, or understand English – may be entitled to language assistance. Whether a provider is designated as LEP depends on the context. Immigration agents may determine that a provider has sufficient English language skills to function in one setting but not another.

Language Access Services are defined as “oral and written language services to enable LEP individuals to communicate effectively with staff to gain access to participate fully in the services, activities, or other programs administered by immigration agents.” It is US Immigration & Customs Enforcement (ICE) policy to provide these services to “members of the public who are seeking access to ICE’s programs, activities, and services; LEP individuals subject to ICE enforcement actions; LEP individuals in ICE custody; and LEP individuals that ICE works to protect.”

“The ICE LAP applies to the Agency functions in which ICE employees interact with members of the public, persons involved in law enforcement interactions, persons detained in ICE custody, and persons subject to reporting requirements with ICE (e.g., orders of recognizance, orders of supervision), including victims and witnesses in HSI investigations. This includes, but is not limited to, websites, blogs, social media, email, telephone, and in-person contact.”

ICE detention facilities must provide information to all detainees in the language or manner which they can understand throughout the process. Detainees also have access to professional interpretation and translation services and bilingual staff to facilitate communication. Most written materials are translated into Spanish as well as other languages prominent among the Limited English Proficiency population. Detainees have rights to oral interpretation when written materials are not translated into their language or in cases of illiteracy.

If immigration agents arrive, with or without a warrant, child care providers have the right to remain silent. To invoke this right, clearly state: “I want to remain silent and speak to a lawyer.” At that point, immigration agents must stop any questioning. It is important to actually remain silent and not to resume conversation after invoking this right, as doing so may unintentionally waive it.

Providers have the right to consult an attorney when they are “in custody”—that is, when they are not free to leave. This includes situations where a provider is detained for questioning or placed under arrest. In these circumstances, providers have the right to have an attorney present during any questioning. Please note that the government is not required to provide a free attorney to detained individuals/individuals in immigration proceedings. Some nonprofit legal service providers such as CHIRLA, CARECEN, Immigrant Defenders, and Public Counsel may be able to provide services free of charge.

The REAL ID primarily affects air travel and access to secure federal facilities like federal courthouses and military bases. Families or providers who may need to travel on domestic flights should obtain a REAL ID. Providers and families may apply for a REAL ID at a local DMV branch by presenting proof of identity and California residency as well as their Social Security number. Undocumented California residents who have an AB 60 driver’s license are ineligible for a REAL ID driver’s license or identification card.

The REAL ID is unlikely to directly impact child care providers or families seeking child care services. Providers should reassure families that they can still lawfully enroll their child in the child care even without a REAL ID. A driver’s license or other form of identification, including an AB 60 license, is sufficient for families to enroll their children in child care programs.

Law enforcement and immigration agents may only enter private spaces with a judicial warrant. If immigration agents arrive at a family child care home, the provider should avoid opening the door unless the agents have a judicial warrant. Following the child care facility’s policy, the person authorized to speak with the immigration agents may ask the officers to slide any warrant they may have under the door or otherwise show the warrant for inspection without requiring the door to be opened.

Judicial warrants are search and/or arrest warrants that must be issued by a federal court and signed by a judge to be valid and enforceable under the Fourth Amendment. While the documents used for both home and workplace searches and arrests are generally the same, the information required for lawful entry may differ. For example, because individuals have a greater expectation of privacy in homes than in workplaces, the warrant for a workplace may permit broader searches. Specifically, judicial warrants for workplaces may extend to business records, employee information, or client files. Because homes are entitled to greater protection than workplaces, warrants to search homes must be more specific about the information or items of interest. Also remember that a judicial arrest warrant alone does not give immigration agents authority to enter a third party’s home or business to make an arrest.

Administrative warrants are not court orders. An administrative warrant will be signed by an immigration officers rather than a judge. These do not give immigration agents the right to enter private areas. These can be used in public to detain the person named in the warrant. ICE officers who only possess administrative warrants may not enter a family child care provider’s home without the provider’s consent.

Look for:

• Who issued the document?

• Does it authorize a search of the facility? What does it authorize?

• Has it expired? Have more than 14 days elapsed since it was signed?

• Is it signed by a judge and not an immigration official?

If the warrant is signed by an immigration officer or a Department of Homeland Security agent and not a judge, it is not a valid judicial warrant. If it is signed by a judge, check that the judge’s signature is written directly on the page and is not stamped or created using a computer font. Ensure that the signature matches the printed name underneath. A valid judicial warrant should list dates of issuance and expiration. Finally, confirm that the judicial warrant is legible, neatly formatted, and includes information about the place(s) to be searched and/or the items or people to be seized.

For more information on identifying judicial warrants and subpoenas, please see this resource.

Providers approached by immigration agents while on the street should:

• Remain calm

• Inform the agent that they wish to remain silent

• Ask if they are free to leave

  • If the agent says the provider is free to leave, the provider can calmly leave the area

  • If the agent says the provider is not free to leave, the provider should politely decline to answer any questions and ask to speak with their attorney

• Refrain from showing documentation unless provider is approached while driving, under lawful arrest, or is a non-citizen

  • Do not present false information.

• Avoid signing any documents without an attorney present

• Write down all relevant information about the interaction

• Providers approached by immigration agents while with children should also:

• Ensure that the child is safe

• Reassure the child that the situation is being handled

• Inform the agent that they wish to remain silent and that they would need to contact and get permission from the child’s parents/guardians before the agent proceeds with any questioning of the child

While the Trump administration has used the Alien Enemies Act of 1798, rather than judicial warrants, to deport individuals suspected of gang activity, these deportations have been subject to legal challenges in the courts. Federal courts are currently blocking the administration from invoking this law to carry out deportations.