FAQ: How Employers Can Prepare for U.S. Immigration and Customs Enforcement Audits and Raids

Employers should be aware that the Trump Administration is intensifying immigration enforcement efforts, which will likely lead to increased workplace audits and raids by U.S. Immigration and Customs Enforcement (ICE).

Recent executive orders by President Donald Trump have expanded federal agencies' authority to arrest and detain undocumented individuals, signaling a more aggressive approach to immigration compliance. Industries in critical infrastructure sectors, such as healthcare and transportation, and industries such as hospitality, construction and agriculture, which traditionally employ higher numbers of immigrant workers, may be particularly affected.

To mitigate potential risks, it is essential for employers to review their hiring practices, ensure accurate completion of employment verification documents for all employees and develop comprehensive response plans for possible ICE interactions. Proactive compliance and preparedness are crucial in navigating this heightened enforcement landscape.

ICE Audits

1. What is an ICE Audit? An ICE audit is the agency's mechanism of inspecting an employer's employment verification documents, such as Form I-9 and E-Verify, and ensuring compliance with the relevant laws and regulations.

2. How will an employer know if it's being audited by ICE? ICE audits are generally initiated through a Notice of Inspection. During the audit, ICE will ask the employer to produce Form I-9s for current and recently terminated employees and may also ask for a list of employees, wage reports, payroll records, E-Verify confirmations and other business information.

3. What should an employer do if it receives a Notice of Inspection? Immediately contact immigration counsel and share a copy of the Notice of Inspection.

4. What happens during the ICE audit? Once a Notice of Inspection is issued, employers generally have three business days to produce the requested Form I-9s. The agency will review the forms and identify technical and substantive errors or patterns of unfair immigration practices. For more information, see ICE's fact sheet.

5. What are technical and substantive errors? Technical errors are minor issues that ICE will generally allow an employer to correct within 10 business days. Substantive errors are those that cannot be corrected because, as a result of the error or omission, the verification of the new hire's employment eligibility failed at the time the form was completed.

6. What are the fines for errors? Uncorrected technical and substantive violations can result in a civil penalty of $281 to $2,789 for each individual violation. Violations related to unfair immigration-related practices or knowingly hiring undocumented workers can result in penalties ranging from $698 to $27,894, with potential for greater numbers when dealing with U.S. Department of Justice investigations.

7. What happens after the audit? ICE will inform the employer of the results of an audit and may issue one of the following notices: Notice of Inspection Results, Notice of Suspect Documents, Notice of Discrepancies, Notice of Technical or Procedural Failures, Warning Notice or Notice of Intent to Fine.

8. What can employers do now?

• Consider conducting an internal audit of all Form I-9s. Employers should be transparent with employees during an internal audit and inform the employees in writing that it will conduct an internal audit of its Form I-9s. This notification can explain the scope and reason for the internal audit.
• Ensure that you have completed Form I-9s for all active employees, make corrections to Form I-9s as soon as an error is identified and retain Form I-9s for the mandatory period for terminated employees.
  • The regulations state that employers must retain a Form I-9 for each person hired for three years after the date of hire or for one year after the date employment ends, whichever is later.
  • To help mitigate penalties, it is better to review or correct Form I-9s prior to receiving a Notice of Inspection.
  • Review employee personnel, Form I-9 and other immigration files to ensure the files are kept in folders that contain only relevant documents. Keep I-9 records separate from personnel files.
• Employers using E-Verify should conduct an audit of E-Verify cases to ensure compliance, submit cases for employees for whom an E-Verify case was not created at the time of hire (assuming the employer was enrolled at that time) and make sure the mandatory E-Verify poster is posted at all worksites.
• Stay current with form updates and requirements.
• Train Human Resources department employees on how to properly complete and retain Form I-9s.

ICE Raids

1. What is an ICE raid? An ICE raid typically occurs when ICE has probable cause to believe immigration violations are occurring. These raids usually involve a search warrant and a request by the agency for immediate access to an employer's premises and records. Generally, the objective is to detain undocumented individuals working for U.S. employers.

2. Can ICE agents enter without a warrant? ICE agents are free to enter any public areas of the business without a warrant. However, to enter private areas, the ICE agent must have a signed judicial search warrant or the employer's consent. A judicial search warrant is a formal written order that gives law enforcement officers, including ICE, the authorization to make an arrest, a seizure or a search. An administrative warrant, however, does not grant authority to enter private areas without consent. Administrative warrants generally appear on Form I-200 or I-205 and can be signed by an immigration judge or an immigration officer.

3. What is the difference between a public and private area? ICE agents may enter public areas, such as a lobby, waiting area or parking lot, but they cannot access private areas. In a healthcare facility, for example, private areas include examination rooms, offices and medical records. Employees should understand which areas ICE agents may enter without a warrant to avoid inadvertently consenting to a search. It is helpful to have a clear written policy designating which areas are closed to the public. Similarly, employers should consider whether it is possible to view computer screens, patient documents or other sensitive information from public areas.

4. What should an employer do if ICE appears at your worksite?

• Request to see the warrant immediately. The warrant should be signed by a judge and list your company's correct legal name and address.
• Review the scope of the warrant and immediately contact your legal counsel and send a copy of the warrant.
• Have a designated employee accompany the ICE agent(s) during the raid.
• Gather the name and contact information of the agent(s).
• Document all areas searched and all items seized during the raid.
• Photograph or video record the raid if permitted. If your business has security cameras, ensure they are recording. While you have the right to record enforcement actions, do so openly and without interfering with the agents. Make immediate backup copies of any surveillance footage and store them securely.
• Take detailed notes of the entire process.
• Do not obstruct or interfere with the search. Stay calm.
• Do not hide employees, aid in escape from the premises, shred documents, or provide false or misleading information.
• Remind employees of their right to remain silent and their right to legal counsel.
• Do not provide false information or assist in employee escape.
• Maintain a list of employees present during the raid.
• Record what areas were searched.
• Document any conversations or interactions with agents.
• Keep copies of all documentation provided to ICE or by ICE.
• Obtain receipts for any documents taken by ICE.

5. What can employers do now?

• Designate a single person to be the primary point of contact in case of an ICE raid and consider establishing protocols and training to designated company representatives.
• Create a detailed plan that outlines roles, responsibilities and procedures for different types of ICE visits. This plan should be readily accessible to all relevant staff members, especially a front desk receptionist.
• Conduct regular internal audits of Form I-9s and ensure proper completion and storage of all required documentation.
• Provide training to establish the difference between public and private areas of the workplace.

Conclusion

Employers can prepare for ICE audits and raids by implementing proactive compliance measures to ensure they meet federal immigration requirements. This includes regularly reviewing and updating Form I-9s, conducting internal audits to identify and correct discrepancies, and training HR personnel on proper hiring practices and document verification procedures.

Employers should also develop a response plan that designates key personnel to handle interactions with ICE agents, consult with legal counsel and ensure that employees know their rights. In light of the Trump Administration's increased immigration enforcement, maintaining accurate records and fostering a culture of compliance can help mitigate risks and potential penalties.

For more information or questions, please contact the authors.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.