Best Practices for Employers in High-Risk Industries: Preparing for Immigration Audits and Raids

In the event of workplace inspections or enforcement actions by the U.S. Immigration and Customs Enforcement (ICE), employers should be prepared to navigate the legal and operational challenges posed by increased I-9 audits, workplace raids, and employee detentions.

CMPR has compiled a number of ways employers can prepare.

How to prepare

Notices of Inspection (NOIs) will remain a central strategy, requiring employers to submit Form I-9 documentation within three (3) business days. These notices often come with administrative subpoenas requesting additional records, such as payroll details, employee lists, business licenses, and staffing company agreements. Employers using electronic I-9 systems should anticipate heightened scrutiny of compliance with Department of Homeland Security (DHS) regulations, including proper electronic signatures and audit trails. ICE’s Employer Compliance Inspection Center, bolstered by advanced document analysis tools, is poised to handle a higher volume of audits, which may include increased site visits, employee interviews, and undercover investigations. The use of “Blackies Warrants”— civil search warrants for private premises —may also rise, enabling agents to locate unauthorized individuals.

Worksite enforcement actions, while fewer in number, may target industries reliant on unskilled or semi-skilled labor, including agriculture, food processing, manufacturing, hospitality, staffing, and construction. Federal contractors may face heightened risks, with potential penalties like debarment for knowingly employing unauthorized workers. Staffing agencies may also come under greater scrutiny, particularly concerning joint employer liability and identity verification issues. Additional unknowns, such as policies surrounding Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS), and the Cuban, Haitian, Nicaraguan, and Venezuelan (CHNV) parole program, may further shape enforcement priorities.

For business owners and managers, these realities mean more than compliance risks; they affect productivity, morale, and operational stability. Employers should remain vigilant and proactive to navigate this challenging landscape. This guide outlines best practices to prepare for potential ICE actions while protecting your business and workforce.

1. Employer Responsibility: Understanding Your Legal Obligations

Employers are legally required to verify the work authorization of employees through Form I-9 under the Immigration Reform and Control Act (IRCA). Failure to properly complete, retain, or audit these forms can result in significant penalties.

However, the law safeguards employees from discrimination based on national origin, citizenship, or immigration status. Both federal and California laws carry significant risks for employers who take adverse actions against employees due to their national origin, citizenship, or immigration status. These risks — such as potential lawsuits for wrongful termination, discrimination, harassment, or retaliation — are more likely to arise than facing an ICE citation for employing someone without the proper documentation. So, employers should not go beyond the Form I-9 process when verifying an employee’s eligibility to work. As long as the documents presented seem legitimate, employers must accept them.

Key Compliance Tips:

• • • Baseline Policies: Document your baseline policies and workflows for I-9 completion and employment verification. Review complimentary government resources and use illustrations, examples, and other forms of preparation of how to handle common errors.
    • Train: Ensure that those handling I-9 completion and employment verification are trained and knowledgeable on how to handle SSA number mismatches, fraudulent documents, and if participating, E-Verify requirements, TNCs, and reverifications.
    • Uniformity: Ensure that hiring policies are applied uniformly to avoid discrimination claims. Avoid asking employees directly about their immigration status, as this could violate anti-discrimination laws. Be cautious when acting based on third-party “tips” regarding a worker’s status unless independently verified.
    • Timely Completion: Employees must complete Section 1 of the I-9 by their first day of work, and employers must complete Section 2 within three (3) business days of the employee’s start date.
    • Retention: Maintain I-9 forms for all current employees. For terminated employees, retain forms for three (3) years after the hire date or one (1) year after termination, whichever is longer.
    • Avoid Over-Documentation: Do not ask for more documents than required or reject valid documents based on appearance or assumptions.

2. Preparing for ICE Enforcement Actions

ICE may visit a worksite for one of three reasons:

(1)  I-9 Audit: ICE will issue a Notice of Inspection (NOI) and allow the employer three (3) business days to provide I-9 forms for review.

(2)  Workplace Raid: ICE may conduct a raid, but only with a judicial warrant signed by a judge.

(3)  Detainment of a Specific Individual: ICE may seek to detain an individual with a judicial warrant.

Important: An administrative warrant (issued by ICE and not signed by a judge) does not authorize ICE agents to enter private areas of your workplace or compel you to provide employee records.

    3. Steps to Take Before an ICE Visit

Preparation is critical to ensure compliance and minimize disruption. You should consider consulting with immigration counsel or hiring a third-party auditor to ensure compliance:

• Internal I-9 Audits:

o    Create a Plan: Define the scope of the audit (e.g., all employees or a sample group) and ensure it is conducted uniformly to avoid discrimination claims.

o    Review Forms for Accuracy: Review all employee I-9 forms to ensure proper completion. Check for missing information, mismatched dates, or incorrect document details.

o    Correct Errors: Make corrections in a transparent manner. For errors in Section 2, have the employer representative who originally completed the form make corrections, using initials and the date. For Section 1 errors, the employee should make corrections.

o    Do Not Overstep: Do not retroactively request new documents unless an employee is subject to re-verification (e.g., expiring work authorization).

o    Document the Audit: Keep a record of the audit process, findings, and actions taken.

• Designate a Response Team:

o    Point Person: Identify and train a point person (or team) to handle ICE interactions.

o    Educate: Ensure all employees are aware that only the designated person(s) should interact with ICE agents. Inform employees not to invite government officials (i.e., ICE agents, etc.) to the workplace. And inform employees that only the designated response team can grant ICE access to non-public areas.

• Secure Private Areas:

o    Post Signs: Post “No Trespassing,” “Private,” “Management Only,” or similar signs to designate private areas of your workplace.

• Provide Information Resources:

o    Do not ask employees about their immigration status or provide legal advice as to their rights.

o    You may offer employees resources such as the National Immigration Law Center (NILC) for general guidance and support.

4. How to Respond During an ICE Visit

Employers must balance compliance with legal obligations and protections for their workforce:

• Verify Documentation:

o    Ask ICE agents to present their warrant or subpoena. Ensure it is a judicial warrant signed by a judge before granting access to private areas or records.

o    If the warrant is administrative, politely deny access to private areas and direct agents to your legal counsel.

• Limit Scope of Access:

o    Allow ICE agents to access only the specific areas or records specified in the judicial warrant.

• Document the Encounter:

o    Keep detailed records of ICE personnel names, badge numbers, and actions taken during the visit.

• Avoid Voluntary Disclosures:

o    Do not provide additional records or information beyond what is legally required.

5. Handling PR Fallout

ICE audits and raids often attract media attention, which can impact your business’s reputation. A proactive PR strategy can mitigate potential fallout:

• Prepare a Public Statement:

o    Emphasize your compliance with all labor and immigration laws and your commitment to supporting employees within the bounds of the law.

• Engage Crisis Management Professionals:

o    Work with PR experts to manage media inquiries and public perception effectively.

• Reassure Stakeholders:

o    Communicate with employees, customers, and partners about steps being taken to address the situation and prevent future disruptions.

     6. Avoid Retaliation

California law explicitly prohibits employers from retaliating against employees for asserting their rights under immigration or labor laws. Examples of prohibited actions include:

• Terminating or disciplining employees who cooperate with ICE investigations.
• Threatening to report an employee’s immigration status as a form of retaliation.

Retaliation can result in lawsuits for wrongful termination, discrimination, or harassment.

     7. Address Fear and Workforce Stability

The fear of raids alone can significantly disrupt workforce stability. Absenteeism, turnover, and “ghosting” can increase dramatically following news of enforcement activity. During heightened enforcement periods, absenteeism and “ghosting” rises by up to 50% in industries dependent on immigrant labor.

Strategies for Employers:

• Maintain Open Communication:

o    Reassure employees that the company complies with labor laws and will protect their rights as far as legally possible.

• Enhance Staffing Flexibility:

o    Build contingency plans, such as cross-training employees or maintaining relationships with temp agencies to cover staffing gaps.

• Provide Employee Support:

o    Partner with local organizations to offer legal and emotional support to employees.

 8. Managing Third-Party Contracts

If your company uses third-party contractors (e.g., staffing agencies, vineyard management companies, etc.), it is important to protect your business from potential liability. But only up to a certain point – you do not want to assume those third parties’ independent obligations to follow the law. Rather, obtain written assurance by way of your contract and indemnity from them in case they fall short.

Strategies for Employers:

• Vet and Audit:

o    Conduct reasonable background research on your vendors.

o    Ensure that relationship is documented and enforced as a business relationship.

• Eliminate Risks of Joint Employment:

o    Ensure that payroll, training, oversight, and supervision is conducted by the Third-Party and that your company has limited interactions with their workforce.

• Written Assurance:

o    Obtain assurance through representations and warranties in your contracts that third-party entities will comply with all laws regarding their hiring and staffing responsibilities.

• Require Indemnity Agreements:

o    Include clauses requiring third parties to indemnify your business for any claims, damages, or penalties resulting from their non-compliance under the law.

 9. Special Considerations for Oregon Employers

As a sanctuary state, Oregon offers additional protections to immigrant workers:

• State Laws Restrict ICE Cooperation:

o    Oregon law prohibits law enforcement and public agencies from assisting ICE without a judicial warrant.

• Notification Requirements:

o    Employers must notify employees in writing within three (3) business days of receiving an ICE Notice of Inspection (NOI).

• Community Impact:

o    Oregon businesses should prepare for heightened public scrutiny and local activism surrounding workplace enforcement.

By understanding your responsibilities, conducting regular audits, preparing for ICE interactions, and supporting your workforce, you can navigate these challenges while protecting your business and employees. Always consult legal counsel to ensure compliance with the latest laws and regulations.