By Sang M. Shin

The Trump Administration 2.0 has signaled its intention to ramp up immigration enforcement activities, including workplace inspections and raids by U.S. Immigration and Customs Enforcement (ICE) and other government enforcement agencies^[1]. These actions can have serious consequences for your business operations, employee morale, customer relations, and public reputation. Therefore, it is crucial that you take proactive measures to ensure compliance with your Form I-9 obligations, protect your employees’ rights, and seek legal counsel in case of a government audit or raid.

In this alert, we provide you with some practical guidelines and best practices should ICE or another government agency come to your premises. We hope that these guidelines will help you prepare for and respond to any government actions at your workplace in a calm, professional, and lawful manner.

PROACTIVE RISK MANAGEMENT

Form I-9 Compliance

The best way to minimize the risk of ICE or other government actions is to ensure that you are fully complying with your Form I-9 obligations, which require you to verify the identity and work authorization of all new employees.

You should do the following:

• Confirm that all employees have properly completed Form I-9s on file and cross-check payroll records to ensure compliance.
• Conduct regular audits of your I-9 records to identify and correct any discrepancies and demonstrate your good faith and due diligence. Consider involving outside legal counsel for thorough audits.
• Train your staff on how to complete and maintain I-9 forms, identify documentation issues, and handle situations involving potential unauthorized workers.
• Consider using E-Verify, an online system that compares information from Form I-9 to government databases, to further verify work eligibility and reduce penalties in case of violations.

Preparing for Government Agency Visits

In addition to compliance, you should also prepare your staff and offices for the possibility of ICE or other government agency visits, whether for an I-9 audit or a raid.

You should do the following:

• Take a unified approach to all law enforcement interactions and have clear policies and practices that apply to government agencies as well as local police or other federal agencies.
• Have a communications policy & plan to control the flow of information and lessen any disruption to operations in these situations. Designate authorized representatives who are knowledgeable about your rights and responsibilities and can serve as the point of contact until legal counsel is contacted.
• Create private spaces within your worksites that are closed to the public and marked with “Private” signs. Create a policy that visitors and the public cannot enter those private spaces without permission. Government agents can enter public areas of your business without a warrant, but they would need a judicial warrant signed by a judge to enter private areas.
• Train your staff on what to do if agents are present, even during off-hours. Staff should notify authorized representatives as soon as agents arrive, are authorized to assert their personal right to remain silent and not answer questions, inform agents that they do not have the authority to grant them access to non-public areas of the business, and direct agents to an office or conference room away from the lobby or reception area.

WHEN AGENTS ARE ON-SITE

If federal agents come to your workplace, you and your staff should remain calm and professional throughout the interaction.

You should do the following:

• Stay calm and do not be confrontational with agents.
• Document everything. Ask for the government agents’ names, badge numbers, and contact information. Record and monitor their activities but avoid anything that could be construed as interference or obstruction. Do not hide other employees or destroy documents, and do not provide false information. Remind employees that they have the right not to speak to or answer agents’ questions. When the agents leave, write down everything you saw and heard. This will help you remember the details when you talk to legal counsel later.
• Ask for the location of any arrested employees. If they arrest any of your employees, ask the agents where they are being taken. This information will help their family and lawyer find them.

In the aftermath of a raid, you should consider issuing a public statement and consulting a crisis communications team to mitigate any damage to your reputation. You should also provide support to your staff and community by offering leave, separation pay, legal assistance, or other resources to affected workers.

I-9 Audits

The most common reason for government agents, especially ICE, coming to businesses is to deliver a Notice of Inspection (NOI) requiring you to produce I-9 forms and additional records within three business days. Even if you have recently done an internal audit and know your documents are in order, you should:

• Take the full three days if needed; do not feel pressure to provide documents early. You have the right to speak to your lawyer before answering questions or signing any documents. Legal counsel can assist you in reviewing your I-9 forms, correcting errors, and negotiating a short extension to produce the documents if needed. They can also help minimize workplace disruptions by working with ICE to keep them away during those three days. A NOI does not provide authorization for Officers to enter the premises.

Key takeaways for employers

• Proactive compliance: Regular audits, staff training, and clear policies can minimize risks.
• Employee rights: Train staff on their rights and the importance of remaining calm and professional.
• Legal support: Consult legal counsel to navigate audits and enforcement actions.
• Documentation: Record all government agency interactions to protect your business and employees.

By implementing these strategies, companies can better prepare for an immigration raid or I-9 Audit. Jackson Walker’s Business Immigration and Compliance practice offers the experience and support needed to develop effective compliance programs, conduct thorough internal audits, and provide comprehensive training to employees. Engaging with experienced legal counsel can further enhance a company’s readiness for government audits and investigations.

[1] Others include the Department of Homeland Security – Homeland Security Investigations, the Department of Labor, and the Federal Bureau of Investigation.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For assistance, please contact an attorney in Jackson Walker’s Business Immigration & Compliance practice.

Meet JW

Founded in 1887, Jackson Walker has played a vital role in the growth and development of Texas business. With over 500 attorneys, we are the largest firm in Texas. The Firm represents Fortune 500 companies, multinational corporations, major financial institutions, insurance companies, and a wide range of public companies and private businesses around the globe.

Our Business Immigration & Compliance practice provides integrated legal solutions to complex problems that permit our clients to achieve U.S. immigration objectives. The team’s experience ranges from foreign investors and business owners; international and domestic start-ups, small- to medium-size enterprises (SMEs) and public companies who employ individuals that need U.S. visa options to grow and expand their business; families who wish to live in the U.S. temporarily and/ permanently; and persons who wish to acquire U.S. citizenship.