ICE Enforcement Actions: Understanding Employers’ Rights and Obligations

In the past two weeks, the landscape of immigration enforcement in the United States has seen a significant shift. President Donald Trump’s executive orders have greatly impacted both employers and foreign workers across industries. With a marked increase in activity by US Immigration and Customs Enforcement, businesses are facing heightened scrutiny and more frequent enforcement actions targeting undocumented workers including workplace inspections, audits, and raids. This shift has raised important questions for employers about what to do if ICE agents appear at their establishment—what information they are required to provide, what they should ask from the agents, and how to ensure compliance with the law while protecting their interests and the privacy of their employees. This LawFlash provides practical guidance for employers to understand their rights and obligations when facing a visit—raid or otherwise—from ICE.

UNDERSTANDING THE ROLE OF ICE AGENTS

US Immigration and Customs Enforcement (ICE) agents can show up at places of business for several reasons including for workplace enforcement (where they may be investigating the employment of individuals based on their immigration status or attempting to identify employers who knowingly hire unauthorized workers) or for I-9 audits (where they conduct inspections of I-9 forms, which employers are required to maintain to verify that employees are legally authorized to work in the United States).

In some cases, ICE may have obtained a warrant or subpoena to conduct a search or investigation. A judicial warrant is a formal written order that gives ICE agents the authorization to make an arrest, a seizure, or a search. To be valid, the judicial warrant must be signed by a US district court (or a state court) judge, include the location to be searched, the persons or items to be seized, and be dated and issued within the past 10 days. Administrative warrants are not from a court and do NOT allow agents to enter nonpublic areas without permission—they read “Department of Homeland Security” and are on Forms I-200 or I-205.

INITIAL STEPS WHEN ICE AGENTS ARRIVE

If ICE agents arrive at your business, it is important to remain calm and professional and contact experienced white collar legal counsel immediately for assistance in reviewing warrants and any other documentation. ICE agents are required to identify themselves and present valid credentials, including a valid judicial (not an administrative) warrant to enter nonpublic places for purposes of conducting a search or apprehension. Below are some important steps to follow:

• Request Identification: Ask the ICE agents to present their identification. This includes their badge and a valid warrant or subpoena, if applicable.
• Ask for the Scope of the Visit: Ask the agents for clarification on the purpose of their visit. ICE agents may be serving notice of a routine audit, executing a specific investigation, or seeking information about specific employees.
• Obtain a Copy of the Warrant or Subpoena: If the ICE agents have a warrant, subpoena, or court order, you are entitled to a copy. This document will specify which records they can access and which employees are being investigated. Employers are not required to grant ICE authority to enter nonpublic areas of the business to investigate or conduct an arrest without a valid judicial warrant. A valid judicial warrant will be signed by a US district court (or a state court) judge, includes the location to be searched and the persons or items to be seized, and is dated and has been issued within the past 10 days.
• Ask for Details About Employee Rights: Employees have the right to decline to answer questions posed by ICE agents. If ICE agents are questioning employees, ask whether the employee has been informed of their rights, including their right to remain silent or to speak with an attorney. If employees request an attorney, the interview should end.

WHAT EMPLOYERS ARE REQUIRED TO PROVIDE

Employers have certain obligations when it comes to complying with ICE requests. However, there are limitations on what ICE agents can demand and how they can gather information.

1. Access to the Premises

ICE agents may enter public areas of the business without permission. However, workers encountering agents in a public area still have the right to remain silent and to ask for an attorney. Employers may (but are not obligated to) tell employees that they can decide for themselves whether to speak with ICE. However, employers must not direct employees not to cooperate.

If ICE agents have a valid judicial warrant, they have the legal right to enter the premises and inspect documents as specified in the warrant. If they do not have a judicial warrant—or have only an administrative warrant— they do not have the legal authority to enter nonpublic areas, nor are employers obligated to allow them entry.

2. I-9 Forms and Employment Records

Other than enforcement actions, one of the most common reasons ICE agents visit businesses is to inspect I-9 forms to verify the identity and employment authorization of employees. Under federal law, employers must maintain I-9 forms for all active and some terminated employees and provide them for inspection upon request by authorized government officials, including ICE agents.

A Form I-9 investigation is initiated when ICE serves the employer a Notice of Inspection (NOI). Employers have at least three business days to produce the I-9 forms and supporting documents. Employers should not provide ICE agents access to physical spaces, nor should they produce any material immediately upon the NOI being served.

WHAT EMPLOYERS SHOULD NOT DO

While employers are required to cooperate with ICE agents to a certain extent, there are also several things they should avoid doing during an ICE visit:

• Do Not Destroy Documents: Destroying or tampering with documents requested by ICE can result in criminal charges. Employers must preserve relevant documents and records that are the subject of a warrant, subpoena, or audit. Further, employers may not destroy records in anticipation of a request for them from ICE or another law enforcement authority even if the request has not yet been made
• Do Not Provide False Information: Providing false information to ICE agents is illegal and can result in severe penalties, including criminal charges.
• Do Not Discriminate Against Employees: Employers must avoid retaliating against employees who are subject to an ICE investigation. It can be unlawful to discriminate or take adverse actions against workers based on their immigration status. This includes firing, harassing, or penalizing employees who are questioned by ICE agents.

PROTECTING EMPLOYEE RIGHTS

While employers must comply with immigration enforcement laws, they also have an obligation to protect the rights of their employees. Employees have certain rights when it comes to ICE visits.

• Employees Have the Right to Remain Silent: If an ICE agent questions an employee, the employee has the right to remain silent and to consult with an attorney.
• Employees Have the Right to Legal Counsel: Employees have the right to consult with an attorney before answering questions or consenting to searches. Employers may make employees aware of this right; however, noncitizens do not have the right to a public defender or court-appointed counsel in immigration proceedings.
• Do Not Share Employee Information Without Consent: Unless legally required, do not disclose personal or sensitive information about employees to ICE without their consent or unless required by law.

WHAT EMPLOYERS SHOULD DO AFTER THE VISIT

Once ICE has completed its investigation, employers should take the following steps:

• Document the Visit: Keep a detailed record of the visit, including the names of the ICE agents, the date and time of the visit, the purpose of the visit, and any documents or information that were provided to the agents. If ICE arrests any workers, ask the ICE agents where they are being taken, as this information may be helpful to the worker’s family and lawyer in locating the worker and defending the charge. If a search warrant is executed and records are seized, request a copy of the property receipt and search warrant inventory log prepared at the conclusion of the search.
• Review I-9 Compliance: After the inspection, it is a good idea to review I-9 records and ensure that they are complete and compliant with federal requirements. Consider conducting a self-audit, ideally under privilege. If there are deficiencies , take immediate steps to address them. Review internal I-9 processes to ensure they are compliant.
• Consult an Attorney: If you are unsure about legal obligations or if the visit resulted in a subpoena, fine, or other legal issues, consider consulting an attorney specializing in employment or immigration law.

CONCLUSION

Since immigration enforcement is becoming a top priority under the Trump-Vance administration, employers should have a response plan in place before ICE agents arrive at a place of business. The Morgan Lewis government investigations and immigration compliance teams are available to provide additional guidance and assist clients in developing response plans and addressing immigration-related concerns.

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