Multiple immigration-related Executive Orders have been signed and implemented since January 2025. The intent is to target and deploy undocumented immigrants in the United States.

Launching efforts to find, apprehend, and remove millions of unauthorized immigrants has significant workplace implications. Employers must establish practices and procedures to prepare for government worksite enforcement investigations. 

Government Worksite Enforcement Investigations

Government worksite enforcement investigations, known as workplace raids, are carried out to identify and/or detain individuals unlawfully in the country. Immigration and Customs Enforcement (ICE) and Homeland Security Investigations (HSI) are responsible for the raids. Employers should have a plan to handle these typically chaotic investigations. 

Likelihood of a workplace investigation

Although any employer can be the subject of a government worksite enforcement investigation, the government typically targets industries such as manufacturing that are known or believed to have a high percentage of unlawful workers. Therefore, every employer should prepare for a potential ICE investigation.

Government Authority During a Worksite Enforcement Investigation

ICE and HSI have the authority to do the following during a government worksite enforcement investigation:

  • Enter any public worksite area, including the parking lot, lobby, waiting area, and similar locations.
  • Engage in limited activities with an administrative warrant.
  • Use a judicial warrant to enter a private area for search, seizure, or employee arrest.
  • Request to speak with individual employees.

If ICE agents have an administrative warrant with an employee’s name, employers do not have to say whether the employee is working that day. Employers also can refuse to take the agents to the employee.

Employer Preparation for a Government Worksite Enforcement Investigation

Employers should develop a response plan and ensure front office staff understand the steps to take if ICE arrives:

  • The plan should identify a designated employee or employees who will interact with ICE.
  • Include the names and contact information of the individuals to be notified of the investigation, such as legal counsel and senior leadership.
  • Outline the public and private areas of the business.
  • Clarify that ICE agents cannot enter private areas without a warrant.
  • Include procedures to protect employees.
  • Notify employees of their rights. 

Employees interacting with ICE agents should take these actions:

  • Ensure any security cameras are recording.  
  • Immediately ask for a warrant.
  • Ensure the warrant lists the company’s correct legal name and address and is signed by a judge.
  • Review the scope of the warrant.
  • Immediately contact legal counsel and send a copy of the warrant.
  • Remind employees of their right to remain silent and their right to legal counsel.
  • Avoid interfering with the agents, hiding employees, aiding escape, shredding documents, or providing false or misleading information. 
  • Develop a list of employees present during the raid.
  • Gather the ICE agents’ names and contact information.
  • Detail where the agents entered, whether they were armed, any statements made, and whether any employees were threatened or detained.
  • Have a designated employee accompany the ICE agents during the investigation.
  • Photograph or video record the investigation if permitted. 
  • Document the areas searched, interactions with ICE agents, and the items seized. 
  • Create copies of documentation provided to or by ICE.
  • Obtain receipts for any documents taken by ICE.
  • Immediately create and securely store backup copies of surveillance footage.

Government Form I-9 Audits

U.S. Citizenship and Immigration Services (USCIS) created Form I-9 to verify the identity and employment authorization of individuals hired to work in the country. ICE agents can audit I-9s to ensure they are properly completed and include valid forms of identification.

ICE agents might conduct a Form I-9 audit after a worksite enforcement investigation to gather additional employee details and ensure compliance with laws and regulations. Employers should audit their I-9s to ensure they meet compliance regulations and discard the forms that no longer must be retained. 

Form I-9 Notice of Inspection

Although ICE agents can conduct I-9 audits without notice, employers who receive a Form I-9 Notice of Inspection typically have 72 hours to produce the forms for current and terminated employees. The notice might request a list of employees, wage reports, payroll records, E-Verify confirmations, and other business information. Reviewing the paperwork ensures the company follows legal hiring practices.

Form I-9 Notice of Inspection results

After completing an I-9 audit, ICE provides the employer with a Notice of Inspection Results and could issue any of the following:

  • Notice of Suspect Documents
  • Notice of Discrepancies
  • Notice of Technical or Procedural Failures
  • Warning Notice 
  • Notice of Intent to Fine

If ICE agents uncover technical errors with I-9s, the employer has 10 days to resolve them. However, substantive errors resulting from a mistake or omission when verifying a new hire’s employment eligibility cannot be corrected. 

Substantive and uncorrected technical violations can result in costly civil penalties. Violations relevant to unfair immigration-related practices or knowingly hiring undocumented workers can result in higher penalties, especially when involving U.S. Department of Justice investigations.  

Employer Preparation for a Government Form I-9 Audit

Ensure front office staff and personnel who receive mail understand the steps to take if an I-9 Notice of Inspection arrives. The steps should include:

  • Instructions on initial actions, including notifying immigration counsel and sharing a copy of the Notice of Inspection
  • Verification of ICE agent identity
  • Contact information for outside counsel and designated company personnel 

Internal I-9 audits

Periodically audit the Form I-9s, especially after increases in hiring or hiring employees to complete I-9s on the company’s behalf, to maintain compliance requirements:

  • Let employees know in writing there will be an internal I-9 audit.
  • Explain the reason for and scope of the internal audit.
  • Transparently share information with employees during an I-9 audit.

An I-9 audit should include:

  • Ensuring the correct version of the I-9 was used
  • Confirming each employee has a current I-9 
  • Reviewing I-9s for completeness, timeliness, and accuracy
  • Quickly correcting any errors 
  • Purging I-9s for former employees 3 years after the hire date or 1 year after the employment date ends, whichever is later
  • Keeping I-9s separate from personnel files  

Employers using E-Verify should include these steps in their I-9 audits:

  • Ensure the E-Verify poster is visible at all worksites. 
  • Train Human Resources to properly complete and retain I-9s.
  • Submit cases for employees hired before the employer was enrolled in E-Verify.
  • Stay current with form updates and requirements. 

Partner with The Ōnin Group 

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