One of President Trump’s major campaign promises was to crackdown on illegal immigration. In his first few weeks on the job, the President has taken various steps in this direction.
Workplace raids and Form I-9 audits are two tools Immigration and Customs Enforcement (ICE) officials use to identify and detain undocumented workers. Employers should expect more of these actions during the Trump administration, and must be prepared to respond if and when ICE officials come knocking.
I-9 Audits
More common than raids, I-9 audits begin with ICE sending a Notice of Inspection. The NOI requests that the employer provide I-9s for current and recently terminated employees within three days of receipt. The agency may request related documentation as well, such as a list of current employees, payroll records, and E-Verify records.
Upon receiving an NOI, employers immediately should contact their employment or immigration counsel. It may be possible to obtain a brief extension of time to produce the requested documents, and to determine the intent of the inspection.
After receiving the requested documents, ICE will review them for completion and legitimacy. The review process can take anywhere from a couple of weeks to a few years. When the review is finished, ICE will inform the employer of the results. If the employer has no violations, they will receive a compliance letter. However, if there are technical or procedural failures, ICE will issue a notice stating so, and the employer will have 10 business days to address those issues and possibly avoid penalties.
If ICE concludes that there are substantive violations of the law, or the employer knowingly hired unauthorized individuals, the agency may issue a warning and/or impose civil and criminal penalties depending on the violation. Employers may be able to avoid penalties by providing legitimate documentation for those employees considered unauthorized, or by terminating their employment. ICE also may reduce or eliminate penalties if it determines the employer acted in good faith.
How can you prove good faith? Ensure your I-9s are accurately completed and organized. When you need to fix errors, follow the directions contained in the “Handbook for Employers” available here. (https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274) Also, employers should train key employees on all aspects of I-9 compliance.
Workplace Raids
Raids are much more intrusive than audits, and likely to become more commonplace in the coming months.
Although a raid may be conducted without notice, ICE must have a search warrant that allows the agency to search for and obtain immigration-related documents and interview employees with their consent.
Because raids can be frightening and result in significant consequences for everyone in the workplace, employers must prepare for them in advance. First, employees who will likely interact with ICE officials upon their arrival should be trained to contact leaders and appropriate legal counsel immediately. Counsel or a knowledgeable consultant should act as the employer’s representative in answering the agency’s questions and also monitor the search. ICE officials can be asked to delay their search until counsel arrives.
Before the search begins, the representative should also request identification from the ICE officials, document their identities, and review the search warrant. The warrant must be signed and dated by a judge and contain a clear description of the area and records to be searched. If the employer wants to keep open the option of contesting the search down the road, it is important that the representative not consent to the search, despite complying with the search warrant. Even without a warrant, ICE officials can search public areas, such as the parking lot and lobby. Signage that designates certain areas as “private” may help keep these areas off limits if ICE does not have a warrant.
While monitoring the search, the representative should remain calm and not interfere with the search, even when stating objections to it. The representative should be cooperative and unlock locked areas covered by the warrant. It is critical that no one make misrepresentations to the ICE officials, or help employees hide or leave the premises. However, employees should be informed that they are not required to speak with ICE officials.
A raid may last for several hours. After ICE is done, the representative may request a list of the documents removed.
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If you have questions about the impact of President Trump’s immigration initiatives on the workplace, join us for “The Practical Implications of Trump’s Executive Orders” on February 26, 2025. Register here.
