Working Together

Through a series of sweeping executive orders, the Trump Administration has launched a systematic overhaul of U.S. immigration policy.  The Administration’s prioritization of immigration enforcement will likely impact employers across the United States.  While how and when these immigration reforms may impact your business or organization remains to be seen, you need to be aware and proactively manage your immigration law obligations—and know how to properly respond to a federal immigration investigation or site visit.  As such, the following is an overview of key immigration law provisions along with best practice recommendations for employers in responding to immigration enforcement actions by Immigration & Customs Enforcement (ICE) and other agencies.

I-9 Verification

As an initial matter, under federal law all employers are legally required to complete a Form I-9 Employment Eligibility Verification form on behalf of every new or re-hired employee.   The form is used to document the identity and employment authorization of all employees and requires new employees to attest to their citizenship or immigration status and to produce supporting documentation verifying employment eligibility.

Employers are responsible for examining Form I-9 supporting documentation for authenticity and must not reject reasonably genuine-looking documents.  Employers can also use the “E-Verify” system maintained by the federal government to assist in the employment eligibility verification process; however, for most employers, E-Verify is not mandatory.  In addition, employers are also responsible for maintaining each employee’s completed Form I-9 and copies of the supporting documentation until either one year after the end of employment or three years after the employee’s initial hire, whichever date is later. 

Employers can be subject to potential fines for Form I-9 noncompliance, and on January 2, 2025, the Department of Homeland Security (DHS), which oversees ICE as well as the U.S. Citizenship and Immigration Services (USCIS), announced increased employer fines for I-9 violations.  Under the new DHS fine schedule for 2025, employers are subject to the following fines in connection with I-9 and employment verification obligations:

• Fines of between $288 and $2,861 per offense for Form I-9 paperwork violations;
• Fines of between $716 and $5,724 per employee for knowingly employing an individual unauthorized to work in the United States (first offense);
• Fines of between $5,724 and $14,308 per employee for knowingly employing an individual unauthorized to work in the United States (second offense);
• Fines of between $8,586 and $28,619 per employee for knowingly employing an individual unauthorized to work in the United States (third or subsequent offense).

I-9 Audits

Under federal law, employers must make Form I-9s available for inspection upon proper request made by government officials.  Form I-9 audits are one such form of inspection and are typically conducted by ICE to determine if an employer has properly complied with I-9 employee verification requirements.  ICE initiates Form I-9 audits by serving upon an employer a Notice of Inspection (NOI), which gives the employer three business days to produce the Form I-9s and related supporting documentation requested in the NOI.

In addition to Form I-9 audits, ICE has the legal prerogative to conduct immigration enforcement actions at an employer’s premises without prior notice.  Such actions may be conducted to arrest and remove foreign nationals without legal status to stay in the United States. 

ICE Raids - General Information

While the procedure for an employer response to a NOI and Form I-9 audit is straightforward, properly responding to unannounced ICE raids can be more complicated.  Here are some basic information and best practices for employers regarding ICE raids:

1. Any government agent — including ICE agents — can enter public areas of an employer’s premises (for example, a lobby or restaurant dining room), without permission or a warrant, and question employees. However, employees do not have to answer agent questions and can refer the agents to the employer.
2. Agents cannot enter private areas of a business (for example, the employee locker room or break room) without the employer’s consent or a valid judicial warrant signed by a federal judge — unless there are “exigent circumstances” or if the agents are in “hot pursuit” of a suspect.
3. A judicial warrant is issued by a federal court and signed by a federal judge and will include information regarding the scope of the search — i.e., what actions the warrant does, and does not authorize; whom the agents may arrest; and what, if anything, the agents may seize. Employers are not obligated to consent to any search or allow access beyond the scope of the warrant; however, if owners consent to a wider search, the agents may conduct a wider search based on the employer’s consent.
4. If agents enter a business with a warrant, employers should immediately call legal counsel. In the interim, employers should not try to stop agents—even if they believe the agents are exceeding the scope of a warrant or other legal authority.
   • Instead, the employer should keep careful records of the agents’ conduct, and let legal counsel handle any scope of search issue. Interfering with a federal warrant is a felony, and employers should avoid putting themselves at risk for an interference/obstruction charge.
5. Government agents may also present employers with a non-judicial/administrative warrant (Form I-200 or Form I-205). An administrative warrant directs various federal immigration enforcement agents to arrest the person named in the warrant.
   • However, an administrative warrant does not authorize agents to enter private areas of a business without consent.
   • Additionally, the employer does not have to give information about an employee named on a Form I-200 or Form I-205, and does not have to comply with the administrative warrant or “turn over” an employee named on the administrative warrant.

Employer Best Practices in Response to ICE Raids

We recommend the following actions if ICE raids an employer’s place of business:

1. If agents arrive at a business, the employer should immediately alert legal counsel.
2. The employer should designate a single individual as the immigration enforcement representative, and that individual should be the only company representative speaking with agents on behalf of the business or organization.
3. Employees should refer all questions to their employer or designated company representative.
4. The employer representative should inquire as to whether the agents have a warrant.
   1. If agents have a warrant, the employer/representative should review the warrant and any related documentation to understand the type of warrant and the warrant’s scope
5. Document what is happening throughout the investigation with video, photographs, and written notes. Get as much relevant information—including agent names and badge numbers—as you can, but do not impede the investigation.
6. Do not leave the agents alone on your property or with your employees. Again, do not interfere with the investigation, but be aware that you do not need to let agents move through the property unaccompanied.
7. Obstructing or otherwise interfering with certain ICE activity can be a crime subject to prosecution under federal law. Caution is key even if, for example, the agents claim they do not need a warrant. Contact legal counsel and get them involved immediately.

Employer Document Retention Requirements for Visa Applications

Although government enforcement has focused on illegal immigration during the first few weeks of the Trump administration, U.S. employers and their foreign nationals must strictly adhere to all immigration-related requirements, including those associated with immigrant and non-immigrant visas such as H-1B, L-1, TN, and other employment-based visas. Failure to comply with the law may trigger significant consequences for all parties.  An employer’s non-compliance may at times trigger dramatic and emotionally charged consequences for the foreign nationals.  Non-compliance is often unveiled during audits, mergers and acquisitions, or as a result of whistleblowing.

Each type of employment visa petition or application has its own rules, some of which are taxing, time-sensitive, or at times, merely vague. For example, the Department of Labor (the “DOL”) requires employers to submit a labor condition application (ETA Form 9035) as part of the process for filing an H-1B petition. Such labor condition applications and all the necessary supporting documentation (collectively, the “Immigration Public Access File”) must be available for public inspection by anyone at the principal place of business or at the place of employment within one working day, and for several years.  This requirement may easily trip up employers unaccustomed to the process. Ignorance of the law is, however, not a defense. Non-compliance may be unveiled through various channels, including audits and whistleblowing complaints to the DOL.  Importantly, the scope of the investigation is not limited to the allegations in the aggrieved party’s complaint and may extend to any other violations uncovered. General penalties include fines ranging from $1,000 to $35,000 per violation and debarment from approvals of any immigration petitions for at least one year.  Other monetary penalties may apply.

Now is the perfect time for employers to review all document retention and compliance requirements for the various types of employment visas, including green cards, they may have sponsored for current and past employees, and consult legal counsel as needed.

Employers are facing an unprecedented amount of uncertainty due to the flood of federal policy changes implemented by the Trump Administration. Employees and their families are understandably on edge, and rumors and misinformation are rampant. In order to navigate these challenges, employers should rely on legal counsel while explaining to nervous employees what is — and is not — true, as it pertains to federal immigration enforcement and compliance.

If you need further advice on this topic, feel free to contact the authors of this article at Pullman & Comley, LLC.