ICE Raids and I-9 Audits – What Employers Need to Know

by | Jan 28, 2025 | Employment Law, Legal Insights

The new administration has taken swift immigration actions that have many employers wondering if they need to take any additional steps to make sure they are in compliance with immigration laws, how to protect their workforce, and ensure the safety of their workplace. Several major cities, including Chicago, IL, have been identified as top priorities for the Department of Homeland Security (DHS). However, even states such as Colorado have experienced some Immigration and Customs Enforcement (ICE) raids. Additionally, we expect increased audits of employer-mandated I-9 Employment Eligibility Verification Forms.

What is an I-9 Form?

Employers must use Form I-9 to verify the identity and employment authorization of individuals hired for employment in the United States. This includes any employee who is on the payroll, whether full-time or part-time. The term “employee” does not include individuals, such as volunteers, who do not receive any form of remuneration. Employers must complete Form I-9 for each employee no later than the first day of employment. Employers must keep records of such verification.

Employers must request that employees present acceptable documents to determine if they reasonably appear genuine and relate to the employee. Importantly, employers must examine the employee’s documentation under a DHS-authorized remote procedure or via physical examination. Employers should be careful not to request more or different documents than are required to verify employment eligibility.

Employers should not reject reasonably genuine-looking documents. Another option is for employers to use E-Verify (a free online system maintained by the federal government), which allows for additional flexibility in how an employer reviews an employee’s eligibility documents.Employers need not file Form I-9. Employers must keep a copy of a completed Form I-9 for three years after the hire date or one year after employment is terminated, whichever is later.

Employers should avoid discriminating against individuals based on national origin, citizenship, or immigration status. Penalties for employers violating the law include civil fines, criminal penalties, government contract debarments, or other monetary penalties.

What is an I-9 Audit?

Employers must make their Form I-9s available for inspection if requested by authorized U.S. government officials from the DHS, Department of Labor (DOL), or Department of Justice (DOJ).

Failure to comply with Form I-9 requirements could result in civil fines or criminal penalties.

What is an ICE Raid?

An ICE raid is an event in which DHS officials seek to enter a workplace to conduct inspections and to detain individuals without documented permission to work in the United States. To conduct an ICE raid, the DHS officers should present a warrant to search specific areas that are not open to the public.

What can employers do in the face of an ICE Raid?

As a general rule, DHS officials must have a search warrant to enter any premise that is not open to the public.   Employers may wish to assign an employee to lead their internal ICE aid response team.  If a worksite ICE raid occurs, the following steps may be taken:

  • Ask the DHS officials if they have a warrant.
  • If they say yes, ask to see and copy the warrant and then immediately contact legal counsel.
  • If they say no, state that the company does not consent to the search and then immediately contact legal counsel.
  • If DHS officials do search with or without a warrant:
    • assign an employee to follow officials during the raid;
    • request names of ICE officials conducting the raid;
    • take notes of any activity;
    • employers should train employees that they should not interfere with ICE Raids or attempt to stop any official from carrying out their duties; and
    • employers may wish to train employees that all persons have the right to refuse to answer questions from DHS or any other law enforcement officials and that they have the right to speak with an attorney.

Employee Recommendations

Below are a few recommended best practices for employers to consider implementing  to avoid liability and ensure compliance with state and federal laws:
  • Perform a self-audit of Form I-9 compliance for each workplace location and identify which positions or teams are responsible for compliance.
  • Train appropriate teams on Form I-9 compliance and record retention compliance.
  • Create an ICE Raid Response Plan: Train employees on how to respond to ICE Raids, including requesting to see a warrant and taking the name, telephone number, and business cards of agents. Employers should identify 1-3 individuals to supervise ICE officials, carry out employer compliance, and make a detailed summary of what happened during the visit.
  • Train employees that they have a right to remain silent and to ask for an attorney. Do not direct employees to refuse to speak to the ICE agents.
  • Contact legal counsel for assistance during the process.
  • Consider enrolling in E-Verify to streamline employment eligibility verification.
Please contact your Berg Hill employment attorney with questions or requests for training on responding to ICE raids or refresher presentations on Form I-9 compliance.