Overview: The Current State of Immigration Law and the Impact on Businesses
While the Trump Administration has been persistent in enforcing its immigration policies, it has increased its focus on companies that employ workers without legal status. The crop production, food processing, and construction industries are particularly subject to enforcement with undocumented immigrants making up an estimated 15-20 percent, or more, of workers within them, according to Goldman Sachs. White House border czar Tom Homan recently told reporters that “you’re going to see more work site enforcement than you’ve ever seen in the history of this nation,” and that “worksite enforcement operations are going to massively expand.” By federal agents raiding four workplaces in the garment district of Los Angeles and the Administration’s expressed distaste in sanctuary cities and states, Oregon seems to be one of the focal points for ICE enforcement. This article provides guidance for how businesses can prepare, navigate, and comply with ICE’s enforcement procedures.
ICE generally has two enforcement procedures for businesses. They commonly conduct either an I-9 Form Audit or a “raid”. I-9 Audits and Raids can expose employers to significant civil and criminal liability, especially if violations are found during or as a result of the raid. Knowing the scope of your liability, your rights and obligations as an employer, the rights of your employees, and what you should do to navigate ICE investigations are key for navigating the current landscape of immigration law.
Civil and Criminal Liability for Violations
Key areas of potential liability include
Employing unauthorized workers: It is unlawful to knowingly hire or continue to employ individuals who are not authorized to work in the United States. Penalties for first-time violations can range from nearly $700 to over $5,000 per unauthorized employee, while repeat violations can exceed $27,000 per employee in penalties (adjusted annually).
Failure to properly complete, retain, or produce I-9 forms: Employers who fail to maintain accurate Form I-9s or fail to produce them during an audit or investigation may face paperwork violations with fines up to $3,000 per unauthorized worker, depending on the error and the employer’s compliance history.
Pattern or practice violations: Employers found to have engaged in a pattern or practice of knowingly hiring unauthorized workers may face criminal penalties, including fines and up to six months of imprisonment per offense.
Obstruction or noncompliance during the raid: Interfering with ICE agents, providing false information, destroying documents, or denying access to areas authorized by a valid warrant may result in obstruction of justice charges or additional fines.
Retaliation or discrimination: Employers who retaliate against employees for asserting their rights, or who discriminate based on national origin or perceived immigration status, may be subject to enforcement actions by the Department of Justice’s Civil Rights Division, under the Immigrant and Employee Rights Section (IER).
Civil lawsuits or labor claims: Raids can lead to secondary liability, such as wage and hour claims or wrongful termination lawsuits, especially if employers panic and terminate workers without proper legal basis.
The I-9 Form Audit
An I-9 Form Audit is an administrative review conducted by Immigration and Customs Enforcement (ICE) to assess employer compliance with federal employment eligibility verification laws under the Immigration Reform and Control Act (IRCA). It centers on whether employers are verifying employee identity and work authorization properly through Form I-9
How it may be presented: ICE initiates an audit through a Notice of Inspection (NOI), typically delivered in person, via certified mail, or by commercial courier. ICE does not require a warrant or subpoena to serve an NOI. This is not a criminal enforcement action but an administrative procedure.
How to prepare:
· Maintain a centralized, well-organized I-9 file, stored separately from general personnel files.
· Conduct an internal audit using a qualified immigration attorney or HR professional to identify errors (e.g., missing signatures, outdated forms, incorrect document combinations).
· Correct errors in good faith where legally permitted, using proper amendment procedures. Do not backdate or alter original entries.
After the audit, ICE may issue the following:
· Notice of Inspection Results (compliance achieved);
· Notice of Technical or Procedural Failures;
· Notice of Suspect Documents (employees who appear unauthorized);
· Notice of Discrepancies;
· Warning Notice (violations noted but no fine);
· Notice of Intent to Fine (NIF).
How to Comply: Employers have three business days to produce all I-9 forms and supporting documents (e.g., copies of IDs and work authorization documents if kept). You may request an extension, but it is discretionary and should be requested promptly. Failure to respond in time may result in serious penalties.
When Faced with an ICE Raid
Generally: ICE may arrive without notice and with or without a warrant. They may be conducting:
· Worksite enforcement actions
· Criminal investigations
· Immigration status arrests
Rights of Your Employees: Regardless of immigration status, employees all have the following rights
· The right to remain silent
· The right to decline an interview by ICE agents
· The right to refuse to provide identity documents
· The right to refuse disclosure of one’s country of nationality or citizenship
· The right to request legal representation
First Steps if Approached by ICE: Train employees who are likely to be the first to encounter agents in the event of an ICE visit to
· Ask for identification to record the names and badge numbers of the agents.
· Immediately contact counsel, send a copy of the warrant to counsel if you can, and ask the agents to have counsel present
· Request to see the warrant and be able to identify the validity, type, and scope.
· Document the raid
Determining a Warrant’s Validity, Type and Scope:
Valid judicial Warrant: Must be signed by a judge and say “U.S. District Court” or “[X] State Court” at the top.
Valid Admin. Warrant: Issued by ICE (e.g., Form I-200 or I-205), not a court, and does not permit entry into non-public areas without consent. This will likely say “Department of Homeland Security” at the top.
ICE Authority if you are Presented with a Valid Warrant:
Valid Judicial Warrant: ICE may access and search areas described in the warrant.
Valid Admin. Warrant: Does not allow ICE to enter private areas without consent. Do not volunteer information or escort agents to specific individuals.
Seizure of company property is permitted only if authorized in the warrant. If seizure is authorized, you should:
· Request copies before seizure.
· Ask for imaging of devices instead of removal.
· Explain operational impacts to ICE and request alternatives.
· What you and your employees should do:
· Comply only within the scope of the warrant.
· Do not expand or consent to actions beyond its scope.
· Document all activity and notify legal counsel.
In the Absence of a Valid Warrant:
ICE authority:
· Public areas: Agents may enter freely.
· Private areas: You may deny entry without a judicial warrant. Do not consent unless advised by counsel.
· Seizure of property: Prohibited without a valid warrant or your consent. Do not consent.
· Communication with employees: Remember the rights of employees, as listed above, including the rights to: (1) remain silent; (2) decline an interview; (3) refuse to provide documentation; (4) refuse to disclose nationality or citizenship status; (5) an attorney.
Best practices for employers and employees:
· Politely decline entry into private areas and decline seizure requests.
· Request a judicial warrant for private areas.
· Politely decline entry or seizure requests in the absence of one.
· Contact legal counsel immediately.
Raid Preparation and Employee Training:
· Step 1: Retain qualified immigration counsel to make ensure you are prepared for an audit, raid, or other ICE interaction.
· Step 2: Post clear signage, or draft a clear internal policy, designating public vs. private spaces. This clear to ICE agents which areas they may enter when they do not have a judicial warrant.
· Step 3: Designate a company representative to handle questions and serve as primary contact person with ICE agents during and after the raid.
· Step 4: Train employees who are likely to be the first to encounter agents in the event of an ICE visit (e.g., front desk, host, etc.) to:
o Ask for identification to record the names and badge numbers of the agents.
o Immediately contact counsel, send a copy of the warrant to counsel if you can, and ask the agents to have counsel present
o Request to see the warrant and be able to identify the validity, types, and scope.
o Document the raid
· Step 5: Train all employees to stay calm, not run, and know their rights
Do’s and Don’ts While a Raid is in Progress:
Best practices include
· Documenting everything you can – designated representatives should record by video or note (preferably video):
o Names, badge numbers, and agencies of agents
o Areas accessed
o Documents or property seized
o Whether agents exceeded warrant authority
· Cooperating with agents who are acting within a valid warrant’s limits.
· If agents act beyond the scope of the warrant, inform them that you do not consent to this, but do not physically interfere.
· In the event of documents being taken, ask officers if copies of any documents can be made before they are taken.
· In the event of computers or electronic devices being taken, request that officers image the devices rather than seizing them.
· If the seizure of any items will interfere with business operations, ask the agents to image or copy the items instead.
Employers should generally refrain from the following:
· Do not share employee information without the employee’s consent or unless legally required by law.
· Do not consent to searches beyond the scope of the warrant without approval of legal counsel.
· Do not destroy documents
· Do not encourage/facilitate hiding of documents or employees
· Do not retaliate against employees who were subject to ICE investigation.
· Do not lie/provide false information.
· Do not interfere with any attempts of agents to speak with employees, but remember that you are not obligated to assist in their search for certain employees.
Additional Requests to Make to ICE During/After a Raid
· A full inventory of seized items (ask ICE for a receipt).
· Which, if any, employees taken into custody.
· A copy of the warrant and supporting documentation.
· Any notes from agents identifying alleged violations or noncompliance.
Post-Raid Next Steps:
· Conduct an internal review with counsel.
· Identify potential liability or exposure.
· Develop a compliance improvement plan.
· Reassure employees and provide legal support contacts.
Summary
Both I-9 audits and ICE raids carry serious legal and operational risks. Employers must:
· Maintain compliant records
· Know the limits of ICE’s authority
· Train staff appropriately
· Document and respond to every encounter in coordination with legal counsel
Proactive preparation is the best defense. Employers who are subject to ICE’s enforcement of immigration laws and wait until ICE arrives are often too late to avoid liability for themselves and their employees.