As an employer, you can be prepared if Immigration and Customs Enforcement (ICE) agents show up at your business. ICE may arrive to conduct a raid, to perform a Form I-9 audit, and/or to detain a specific person.
No matter the reason, it is always important to be prepared, to know your rights, and to have legal counsel on hand as soon as ICE agents make contact with your business.
Recent Developments and the Big Picture
On January 20, 2025, President Trump issued an executive order entitled “Protecting the American People Against Invasion,” intending to take action against illegal entry and unlawful presence in the United States. It also expands the use of “expedited removal.” Further, a Department of Homeland Security (DHS) memo, issued on the same day, removed prior protections for “sensitive locations,” such as churches and schools. Going forward, such sites are now able to be raided by ICE. Trump’s new policies swiftly led to a nationwide crackdown on undocumented immigrants, including a recent push to deport unaccompanied migrant children.
Undocumented immigrants make up a large portion of the American labor force. A 2020 report from the Center of American Progress revealed that “in every state, undocumented immigrants make up a larger share of the workforce than they do the total population,” working in industries ranging from accommodation, construction, and food service to administrative and support roles.
Immigrants also strengthen the U.S. economy. The Center for Migration Studies estimates that approximately 8.3 million undocumented immigrants are part of the United States economy. A report from the American Immigration Council revealed that a one-time mass deportation could cost the economy at least $315 billion dollars—and that is a conservative estimate.
How to Prepare Your Workplace for a Form I-9 Audit
ICE may seek to conduct what is called a Form I-9 audit or inspection. A Form I-9 is used to document an employee’s identity and authorization to work in the United States. All employers and employees must complete their respective sections of the form.
The best way to prepare for a Form I-9 audit is to maintain proper documentation. You can also conduct internal Form I-9 audits yourself and ensure that you have a form for each employee, but be aware of state laws that require or prohibit the use of certain verification measures. If ICE contacts your business to conduct a Form I-9 audit, it is best practice to contact your attorney immediately.
When ICE seeks to conduct a Form I-9 audit, you will be served with a Notice of Inspection (“NOI”), which will provide you at least three business days to collect and provide the requested forms. You may also be asked to provide additional business records such as a copy of payroll, articles of incorporation, business licenses, and a list of current and terminated employees.
The NOI is often sent via mail. Alternatively, agents may appear on site with the NOI. In this instance, they usually also produce an administrative subpoena issued by the Department of Homeland Security. You do not need to allow access to private areas without a valid judicial warrant and both you and your workers have rights in these situations (see below). However the NOI is delivered, you always have at least 3 days from being issued the NOI to produce the requested documentation.
ICE will notify you of the inspection results. If you “pass,” you will receive a “Compliance Letter.” If not, ICE will inform you of discrepancies, “suspect documents,” technical or procedural failures, warnings, and intents to fine. ICE typically allows corrections to be made within a specified time period. If you are still found to be non-compliant after this period, you may be subject to civil and/or criminal penalties and may receive a Notice of Intent to Fine. In such an event, employers have the right to a hearing before an Administrative Law Judge at the Office of the Chief Administrative Hearing Officer (OCAHO). Employers must request the hearing within 30 days of receipt of the Notice of Intent to Fine.
More information for employers on I-9 forms and audits can be found here.
How to Prepare Your Workplace for an ICE Visit
Whatever the reason for a visit by ICE agents, preparation is key. These are some key tips for preparing your physical place of work and your workforce for any potential interactions.
- Communicate clearly and with empathy. Communicate any relevant workplace policies to your workforce with clarity, ensuring everyone is on the same page. Also communicate with empathy, understanding the fear that may be gripping particular communities and the additional stressors families may be experiencing. Regardless of immigration status, the possibility of an ICE raid may be unsettling. It is important that you be proactive in communicating with your workers to mitigate fear and maintain a safe workplace.
- Train employees on record-keeping. Ensure that your team, especially human resources, knows which documents are required by law to be preserved and for how long. Staff should know when to ask for documentation from employees, how to ask for it, how to store it, and when it may need to be handed over to relevant authorities.
- Train employees on their conduct and their rights. Have a plan in place for the eventual visit by ICE. You might designate someone on your staff to coordinate planning and training for a visit, as well as someone designated to interface with ICE agents should they arrive. Consider providing your workforce with “Know Your Rights” materials (see here and here for examples) and periodic trainings regarding their legal rights. You can facilitate these either internally or by inviting an external group.
- Take additional steps. ICE agents must have a judicial warrant to access areas of your business where you have a reasonable expectation of privacy. You may designate certain spaces as “private” or as “employees only.” You can also keep certain doors locked so that unauthorized visitors cannot easily access them.
When ICE Demands Entry
ICE agents usually show up without providing prior notice if they are conducting a raid or looking for particular individuals. Agents can legally access public spaces, such as your building’s lobby and parking lot. This does not mean, however, that ICE agents are able to access the private areas of your business.
The Constitution’s Fourth Amendment protects all individuals—regardless of immigration status—against unreasonable searches and seizures. Authorities need a lawful warrant to enter private property. Whether or not ICE presents a warrant upon arrival, you always have the right to ask ICE agents to produce their warrant.
When asked, ICE agents often present an administrative warrant, meaning one that is administered by its own agency. It will be printed on a Form I-200 or Form I-205 and indicate issuance by the “Department of Homeland Security.” The warrant will be signed by an immigration judge or some other variety of immigration officer. ICE may present this when showing up unannounced to provide notice of an audit (the “NOI”) or when desiring to conduct a raid.
Yet administrative warrants are not valid warrants to inspect your private property. Only valid judicial warrants allow ICE to access the private spaces of your business (which you can clearly label, as mentioned above). It is crucial that you always verify whether a warrant is both valid and judicial.
A valid judicial warrant is issued by a court. It must identify the court of jurisdiction, either a “U.S. District Court” or a “State Court,” and it must be signed by a judge. Both are necessary for the warrant to allow ICE agents access to your private property. Such a warrant should indicate which private areas of your premises may be searched, which individuals may be searched, and/or which documents can be searched or seized. Examples of both types of warrant can be found here.
If agents do not have a valid judicial warrant, you can request that the agents leave your premises. Be sure to communicate calmly and effectively and do not escalate the interaction. Document everything that occurs during the interaction between your workplace and the agents.
When ICE Is on Your Premises
ICE may show up with advance notice to conduct a Form I-9 audit. Alternatively, ICE agents may arrive unannounced and demand entry for a raid. As long as they present a valid judicial warrant, you are obliged to allow them entry. The warrant provided must delineate which spaces, people, or documents are to be searched and/or seized. You may deny entry to any areas not specified in the warrant.
It is important to remain calm to avoid escalating interactions with ICE agents. At the same time, you can also exercise your rights: nobody is required to disclose their immigration status, sign documents, or converse with ICE agents. You and your workers all have the right to remain silent and assert your right to speak with an attorney before any further interactions.
Once again, document everything in detail that occurs during the interaction between your workplace and ICE agents. You may photograph or record video of ICE’s activities. You should also preserve any security camera footage of ICE’s visit.
You can be prepared for any ICE activity and you can empower your workers to feel prepared, too. Becoming aware of your rights as an employer, and ensuring your workers are aware of their rights, is crucial for maintaining a positive workplace culture built on trust while also remaining compliant with the law.
This post does not constitute legal advice. If you have questions about immigration status, it is best to consult with an immigration attorney.