Jorge Zamora is a shareholder at Gunster’s Labor & Employment practice. Maria Romero is an associate with Gunster’s Immigration Law practice.
Immigration enforcement has become a pressing issue for businesses across the U.S., requiring employers to take proactive steps in preparing for potential workplace actions.
Within the U.S. Department of Homeland Security, a cabinet-level department responsible for national security, Immigration and Customs Enforcement serves as the enforcement arm focused on ensuring employer compliance with federal immigration laws. Whether facing a workplace raid or an I-9 audit, it’s essential for HR professionals to understand an employer’s rights, responsibilities and preparedness strategies.
Types of ICE worksite enforcement actions
ICE may conduct worksite enforcement in various ways, including unannounced workplace raids, I-9 audits and targeted searches for specific individuals.
A workplace raid occurs when ICE agents arrive unexpectedly with a federal arrest and/or search warrant, often following an investigation into suspected employment of undocumented workers. The warrant will have a detailed description of what and where agents are going to search and what they may seize. In some cases, enforcement efforts may involve surrounding the premises and using aerial surveillance.
I-9 audits, while less adversarial, can still cause significant disruptions. The administrative inspection process is initiated with the service of a notice of inspection upon the employer, with a request that the employer produce Forms I-9. Generally, the NOI will also request supporting documentation, which may include, but is not limited to, copies of employee identity and work authorization documents, an employer’s payroll, a list of active and terminated employees, articles of incorporation and business licenses.
Employers should always confirm the nature of the investigation — if ICE is conducting an I-9 audit, businesses have the right to insist on a three-business-day period to produce the requested documentation.
Preparing for ICE raids and worksite visits
Workplace raids and I-9 audits can be costly and disruptive. Compliance failures may result in substantial fines, business interruptions and potential legal exposure.
That’s why employers should work with legal counsel to establish a written ICE rapid response policy to ensure a structured approach to worksite enforcement actions. This plan should designate a trained response team, including front desk staff, legal counsel and company leadership, to manage interactions with ICE professionally and within legal parameters.
Employers must also understand the legal differences between warrants. A judicial warrant grants ICE access to nonpublic areas, while an administrative warrant does not. If ICE presents an administrative warrant, such as Form I-200 (Warrant for Arrest of Alien) or Form I-205 (Warrant of Removal/Deportation), the employer is only required to allow access to public areas.
In any event, employers should always request to see the warrant before taking further action. Understanding the scope of the warrant is critical in ensuring that employers do not inadvertently consent to anything beyond what is legally authorized. Employers should verify the warrant’s details and consult legal counsel before permitting ICE access beyond what the warrant explicitly allows.
Company leadership should assign representatives to accompany ICE agents during any type of visit and document all actions taken. If records are seized, the employer should request a receipt listing the items removed. Employers should also prepare a contingency staffing plan to ensure business continuity if a worksite enforcement action results in employee detentions.
Employers also must clearly communicate employees’ rights in case of an enforcement action. Workers encountering ICE agents in public areas have the right to remain silent and request legal representation. However, employers must not obstruct the raid in any fashion, as obstruction could result in penalties.
Preemptive compliance is key
To ensure compliance and reduce legal risks, employers should implement the following proactive strategies:
- Conduct internal I-9 audits with legal oversight to identify and correct discrepancies.
- Update company policies and provide HR training on I-9 documentation requirements.
- Consider E-Verify enrollment to enhance compliance, particularly in states where it is mandatory.
- Insist on the three-business-day response period before submitting documents in an I-9 audit.
ICE enforcement actions are unpredictable, but preparation allows businesses to minimize risks while protecting employees. Employers must prioritize compliance by training leadership on employees’ rights and warrant distinctions, establishing strong response protocols and working closely with legal counsel to ensure compliance with federal immigration laws. By maintaining operational readiness and staying informed on evolving immigration policies, businesses can safeguard their workforce while avoiding unnecessary disruptions.
