With the Trump Administration’s renewed focus on immigration, many companies are asking what to expect, and how to respond to a potential raid on their facilities by Immigration and Customs Enforcement (“ICE”). As enforcement activities continue to unfold, employers should take proactive steps to prepare for possible ICE visits or audits.
ICE is charged with the arrest, detention and removal of certain non-citizens. Most employers are already aware that ICE conducts occasional I-9 audits. But the new administration signals an increased likelihood of ICE visiting worksites to arrest non-citizens who are subject to removal from the U.S. These actions are typically based on a civil administrative warrant, although occasionally they arise from a judicial criminal warrant. Most likely though, the Enforcement & Removal Operations (“ERO”) division of ICE will focus on non-citizens with serious criminal convictions and those who were ordered removed by an Immigration Judge but have failed to depart the U.S.
Additionally, we anticipate an increase in I-9 audits in the coming years. However, due to limited agency resources and the likely economic impact, we do not expect mass raids. While some I-9 audits will be randomly selected, others will be based on a broader investigation that ICE may be conducting of that company.
Below is some guidance to prepare employers for possible ICE visits or audits.
1. ICE Priorities
The Enforcement & Removal Operations division of ICE has announced that it will target non-citizens with serious criminal convictions and those who were ordered removed by an Immigration Judge but failed to depart the U.S.
2. Civil Arrests With An Administrative Warrant From ICE
Most immigration status violations are a civil matter, not criminal. ICE has authority to issue civil administrative warrants to take custody of individuals that it has probable cause to believe are removable from the U.S. These are signed by ICE immigration officers.
3. Federal Criminal Arrests With A Warrant From A Federal Judge
Individuals are subject to criminal arrest by ICE if they have:
• Been ordered removed but never departed the U.S.;
• Re-entered the U.S. after being removed;
• Used false documents to obtain employment in the U.S.;
• Knowingly hired an individual who is not work authorized (this is reserved for a pattern/practice);
• Retained an employee after ICE informed the employer that the employee is not work authorized; or
• Any federal crime that happens to come under the jurisdiction of ICE.
4. ICE Raids
As discussed further below, we do not anticipate many mass raids by ICE. Rather, ERO will conduct targeted enforcement actions. This is because of a number of reasons.
a. Resources And Logistics: ICE has a limited number of agents, detention space, airplanes, and funds with which to conduct removal operations. In addition, almost all individuals who are arrested by ICE are entitled to a hearing before an Immigration Judge before they can be removed. Therefore, ICE has to conduct targeted operations, not mass raids.
b. Private Property: ICE may not enter private property including the private portions of commercial establishments without permission, absent the rare circumstance where there is a criminal warrant issued by a Judge.
c. Hospitals: Even though it has recently reversed a policy prohibiting this, it is very unlikely that ICE will enter a hospital to make a civil administrative arrest. ICE understands that patients are undergoing medical treatment and the agents do not want to take custody of a patient who requires medical treatment. Moreover, hospitals understandably will not release confidential data due to HIPPA requirements.
d. Schools And Churches: Unless a school or church has a pattern and practice of promoting illegal immigration and/or harboring large numbers of migrants from ICE, it is highly unlikely ICE will enter these facilities.
e. Homes: With civil administrative warrants, absent exigent circumstances, ICE must knock on the door and cannot enter without permission. However, if there is no cooperation, ICE will consider asking a Judge for a criminal arrest warrant if there are grounds to do so. In addition, if ICE encounters challenges to completing the arrest, they may be more likely to want to arrest other non-citizens in the home that lack legal status in the U.S.
5. Right To Remain Silent
Individuals, including non-citizens, may invoke their right to remain silent when questioned by ICE. Any statements they make may be used against them. That said, employers may choose to cooperate with ICE so as to avoid complications with the agency. Consult with legal counsel prior to admitting any liability.
6. ICE Request For Immigration Papers
When in public, immigration officers may ask a non-citizen for their immigration papers. The non-citizen is required to have such papers with them and to provide them to the officer. Failure to do so can lead to a $100 fine and/or up to 30 days in jail.
7. Data Analytics
To assist in their investigations, ICE has access to a host of data including state and federal arrests and convictions, employer quarterly federal payroll reports, Social Security information, U.S. passport databases, lawful permanent resident (green card) databases, Employment Authorization Document (“EAD,” or work permit) databases, I-94 databases and birth certificate information from some states.
8. I-9 Notice Of Inspection vs. I-9 Raid
Most I-9 audits involve Homeland Security Investigations (“HSI”, a different division of ICE from ERO), which drops off a Notice of Inspection and then collects the company’s I-9’s. In some states, like California, once a federal I-9 audit has commenced, the state requires that the employer post the Notice of Inspection and notify any union. An employer is liable for missing I-9’s or I-9’s that have substantive errors. However, they are not liable if an employee’s documents looked real at the time of hire but turn out to be fake. Toward the end of the audit, if ICE finds missing or false papers, it traditionally has issued a Notice of Suspect Documents advising the employer to terminate individuals on that list. However, going forward it’s possible ICE may sometimes bypass issuing the Notice of Suspect Documents and simply arrive at the worksite with civil warrants for the arrest of those employees. However, we believe this will not be the norm, due to limited agency resources.
9. Cooperation With ICE
While an employer does not have to cooperate with a civil administrative warrant, there is a risk that the agency could commence an I-9 audit if they felt an employer was obstructing their need to arrest a non-citizen employee, or in some cases obtain a criminal warrant from a Judge if they feel the conduct supports it.
10. Avoid Discrimination In Hiring
Do not ask an applicant for employment about their immigration status. You may ask if they require visa sponsorship to work for you now or in the future. After a job offer has been extended, you may give them an I-9 form to complete, in order to confirm that they are authorized to work. If you are not sure if someone is work authorized, consult with counsel. Denying employment when someone is work authorized can create substantial liability for the company.
11. Navigating The Maze
Please find a decision tree below which may be used if immigration officers visit your facility. This diagram is for general informational purposes and should not be construed as individual legal advice. Always consult legal counsel to ensure compliance and avoid liability.
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About The Authors
Greg L. Berk is a Partner in the law firm of Sheppard, Mullin, Richter & Hampton LLP in the firm’s Orange County office. He leads the Firm’s immigration practice and is a Certified Specialist in Immigration and Nationality Law by the State Bar of California Board of Legal Specialization>. He has over 25 years of experience advising on all aspects of U.S. immigration matters. He assists employers worldwide with the hiring and retention of foreign national executives and highly talented individuals that are needed in their U.S. workforce. He also works with investors on E-2, L-1, and EB-5 matters. He also handles I-9 and other immigration compliance matters.
Greg frequently lectures on immigration issues and is a regular contributor to the California Labor and Employment ALERT Newsletter and Sheppard Mullin’s Labor & Employment Law blog. Mr. Berk received his J.D. from Western State University College of Law, his M.B.A. from George Washington University and his B.A. from California State University.
Jonathan Meyer is a Partner in the Governmental Practice Group with the law firm of Sheppard, Mullin, Richter & Hampton LLP in the firm’s Washington DC offices. He counsels clients on their interactions with federal and state government, as well as national and homeland security, Congressional oversight, cybersecurity, AI, high tech, and transportation security, among other issues.
Prior to returning to Sheppard Mullin, Jon was nominated by President Biden and confirmed by the Senate as the Sixth General Counsel of the U.S. Department of Homeland Security, serving from 2021 to 2024.
Jon is regularly sought out by the media – including CBS News, NPR, The Wall Street Journal, The New York Times, The Washington Post and Politico – on issues including national security, homeland security, government investigations, cybersecurity, immigration, politics and Congress.