Navigating Workplace Immigration Compliance:  What Employers Need to Know

Across the Country, US Immigration and Customs Enforcement (ICE) are cracking down on employers suspected of hiring undocumented workers.  According to experts, US employers in the agriculture, construction, food processing, hospitality, and manufacturing industries should prepare for increased immigration enforcement in the workplace.  These raids are unannounced and can include the seizure of all relevant documents including bank records, employee records, payroll records, I-9 forms, and tax documents.

The consequences for employers who knowingly employ undocumented workers are severe.    Fines can range from $5,579 for first offenses and up to $27, 894 per employee for repeat offenders.  Business owners and managers can be sentenced to up to ten years in prison and a maximum of $250k for harboring undocumented workers. 

Key Information:

Employer Rights & Responsibilities:

Maintain Access Control: Employers are not required to allow ICE agents into non-public areas of the workplace without a judicial warrant signed by a judge. An administrative warrant (e.g., Form I-200 or I-205) does not grant permission to enter private areas. Check the presented documents.

Verify the Presented Warrant: Upon presentation of a warrant, employers should verify its validity, thus ensuring it is properly signed and dated by a judge, specific to the company and address, and within the appropriate timeframe.

Monitor the Scope of Search: Thoroughly read the presented warrant.  Employers should monitor ICE agents to ensure they do not exceed the scope of the warrant. If agents attempt to search areas or seize items not specified, employers should formally object and document the incident.

Protect Privileged Materials: If agents seek to examine documents protected by attorney-client privilege, employers should assert this privilege and request that such materials not be inspected until legal counsel is present. Immediately contact legal counsel.

Non-Discrimination: Employers must not discriminate against employees based on their actual or perceived immigration status. Retaliation against employees who exercise their rights is prohibited.

Notify Your Employees: Pursuant to Labor Code section 90.2(a), Employers operating in California are required to notify employees of any inspection of I-9 Employment Eligibility Verification forms or other employment records by an immigration agency by posting a notice within 72 hours of receiving the notification of inspection.

Employee Rights:

Right to Remain Silent: Employees are not obligated to answer questions about their immigration status, country of origin, or how they entered the United States. They can choose to remain silent and request to speak with an attorney.

Right to Refuse Document Disclosure: Employees are not required to present identity documents that reveal their nationality or citizenship status.

Protection from Unlawful Search and Seizure: If ICE agents do not have a valid warrant. employees have the right to refuse consent to searches of their person or personal belongings.

Right to Legal Representation: Employees can request the presence of an attorney during any questioning or legal proceedings.

Be Prepared

Maintaining strict adherence to Form I-9 requirements is essential for employers to verify the employment eligibility of their workforce and to avoid potential legal penalties. Regular self-audits of I-9 forms serve as a proactive measure to identify and rectify errors, ensuring compliance with federal regulations. To conduct an effective self-audit, employers should first compile all I-9 forms for current employees and those of terminated employees retained within the mandatory retention period. Each form should be meticulously reviewed for completeness and accuracy, focusing on proper completion of all sections and verification of acceptable documentation. In instances where discrepancies or omissions are discovered, employers must make the necessary corrections in compliance with legal guidelines, ensuring that any changes are properly annotated and initialed. Implementing regular training sessions for staff responsible for I-9 administration can further enhance compliance efforts and reduce the likelihood of recurring errors. By systematically auditing and updating I-9 forms, employers not only demonstrate a good-faith effort to comply with immigration laws but also fortify their defense against potential governmental audits or inspections.

Having a well-prepared ICE raid plan provides employers with a clear strategy to respond swiftly and effectively to immigration enforcement actions, minimizing workplace disruptions and legal risks. It ensures that employees understand their rights, key personnel know how to interact with ICE agents, and the company remains compliant with immigration laws. A proactive approach also demonstrates good faith in regulatory compliance, reducing the likelihood of severe penalties. Ultimately, an ICE raid plan safeguards both the business and its workforce, fostering a sense of security and preparedness in an unpredictable enforcement landscape.

References:

Adinata, G.N. (no date) Ice workplace raids – how employers can be prepared, FordHarrison. Available at: https://www.fordharrison.com/ice-workplace-raids-how-employers-can-be-prepared (Accessed: 19 February 2025).

Maurer, R. (2025) HR should prepare now for workplace immigration raids, Welcome to SHRM. Available at: https://www.shrm.org/topics-tools/news/hr-should-be-prepared-for-workplace-immigration-raids (Accessed: 20 February 2025).

Zaller, A. (2025) Navigating ice raids and audits: A practical guide for California employers, California Employment Law Report. Available at: https://www.californiaemploymentlawreport.com/2025/02/navigating-ice-raids-and-audits-a-practical-guide-for-california-employers/ (Accessed: 26 February 2025).