For U.S. employers confronted by Immigration and Customs Enforcement (“ICE”), Homeland Security Investigations (“HSI”), the U.S. Department of Labor’s Wage and Hour Division, and other federal agencies seeking to verify the employers’ compliance, this is always a very stressful experience. Even a U.S. employer, without any foreign workers on staff, could still encounter immense difficulties as the result of a federal investigation if they do not have sound policies, procedures, and action plans in place if/when ICE or HSI knocks on their door.
What We Know: Increased Workplace Enforcement Actions and Employer Requirements
From the outset of the COVID-19 pandemic and through the Biden Administration, U.S. Department of Homeland Security (“DHS”) and U.S. Department of Labor (“DOL”) enforcement actions decreased significantly. In fact, while DHS conducted 12,000 I-9 audits during the year 2020, that total shrank to 400 for last year. Thus, while it may take some time for the second Trump administration to ramp-up its investigatory and removal capacities, we can reasonably expect an increase the total of I-9 audits to 2020 rates, if not higher. The administration has declared that they plan to crack-down on unauthorized employment, remove foreign nationals lacking permission to work in the United States, financially penalize U.S. employers that failed to properly complete the I-9 process, or even criminally penalize U.S. employers who have engaged in a pattern or practice of knowingly employing unauthorized workers.
There have been numerous procedural and substantive changes to the I-9 and related processes over the past four years that are worth noting:
1. New Versions of Form I-9: DHS released new versions of the Form I-9; both editions are dated August 1, 2023, while one has an expiration of July 31, 2026 and another expires May 31, 2027. As of August 1, 2026, all Form I-9s must be completed using the edition that expires May 31, 2027 – assuming another new version is not introduced between now and then.
2. Alternative Procedures for Completing I-9 Requirement: Initially introduced to navigate the inability for employers to re-verify Forms I-9 completed during the COVID-19 pandemic, since August 1, 2023, DHS has permitted certain employers, from the outset, to remotely verify original documentation presented to satisfy a Form I-9’s List A or List B and List C requirements to establish identity and permission to work in the United States. Known as the Alternative Procedure, U.S. employers may eschew in-person reviews of I-9 documentation within the customary 3-day window after an employee is hired so long as the employer can meet the following criteria:
a. The employee must transmit scans or clear photos of the front(s) and back(s) their identity and/or employment authorization document(s) to the employer.
b. The employer must hold a live, virtual meeting with the employee, wherein the employee presents their I-9 documentation, front and back, to the employer.
c. The employer must either annotate the old version of the Form I-9 (i.e., if they are reverifying an existing worker’s employment authorization without completing a new version of the Form), or check the applicable box on the new Form I-9, indicating that they have examined the employee’s Form I-9 documentation through the Alternative Procedure.
d. Retain clear scans or photographs (“legible copies”) of the documentation presented with the Form I-9.
e. The employer must participate in, and be in good standing with, E-Verify.
3. Introduction of E-Verify+: In the intervening 17 months since introducing the Alternative Procedure, DHS also rolled-out E-Verify+, an enhanced version of the long-standing method for almost instantaneously affirming a worker’s employment authorization. This updated version, which was piloted throughout 2024 and that is now available for all E-Verify users, is largely consistent with the prior version but for E-Verify+’s increased interaction with the workers themselves. Importantly, an employer may use the Alternative Procedure without also adopting E-Verify+, and neither E-Verify or E-Verify+ is a substitution for completing the I-9 requirement – rather, E-Verify(+) offer(s) extra assurances that a new worker possesses employment authorization.
4. Automatic Extensions: The Biden Administration made permanent automatic extension periods for certain Employment Authorization Documents (“EADs”), meaning proof of a foreign worker’s ongoing employment authorization is more likely to take the form of an expired EAD and EAD Renewal Extension Notice (on Form I-797C) than previously as many EADs are eligible for a 540-day extension beyond their expiration while USCIS processes their new work authorization.
U.S. employers must complete the Form I-9 and retain documentation verifying employment for ALL workers, meaning DHS or DOL officials could impose civil or criminal penalties for an organization that does not employ a single foreign national. U.S. employers must administer its I-9 processes in a nondiscriminatory manner, and may not take adverse action against any employee, regardless of their nationality or authorization to work, who makes a complaint and/or cooperates with a DHS/DOL investigation.
While ICE may conduct an I-9 audit simply to enforce documentary compliance requirements, ICE may also be on the lookout for more nefarious criminal behavior such as human trafficking, smuggling, or actively harboring undocumented immigrants. In addition,
an I-9 audit is not the only reason a U.S. employer may be confronted by federal officials at their place of business; rather, ICE may also conduct a worksite raid to apprehend unauthorized workers
I-9 Audits – Steps and Safeguards
Unlike workplace raids, ICE begins an I-9 audit by issuing a Notice of Inspection to the U.S. employer in question. From there, the employer has 3 days to proffer the requested Forms I-9, after which ICE reviews, identifies violations both technical/procedural and substantive, and affords the employer 10 days to rectify correctible technical/procedural violations.
Some examples of technical/procedural violations include:
- Failing to include the worker’s name and/or address.
- Omitting and/or mis-labeling I-9 documents as List A, B, or C.
- Completing/retaining the Spanish version of Form I-9 outside of Puerto Rico.
- Failing to provide Employer’s address and/or title of individual inspecting the documents.
Some examples of substantive violations include:
- Failing to provide I-9 Forms in response to the ICE inspection.
- Leaving all boxes or multiple boxes pertaining to the worker’s status unchecked on the Form I-9.
- Completing the Form I-9 without the employer and/or employee’s signature.
- Reviewing and accepting invalid documents provided for List A, B, and/or C.
- Failing to complete the Form I-9 within 3 days of hire.
An employer capable of correcting technical/procedural violations should be deemed compliant upon providing amended documents.
However, a finding of technical/procedural violations that cannot be corrected – such as using the Spanish-language version of Form I-9 outside of Puerto Rico – as well as substantive violations can result in financial penalties introduced through a Notice of Intent to Fine, which could be followed by an administrative hearing with the Office of the Chief Administrative Hearing Officer (“OCAHO”) and/or settlement negotiations.
The financial penalties skyrocket when ICE deems the violation rises to the level of knowingly hiring unauthorized workers and can even result in criminal prosecution for egregious offenders. Importantly, the employer’s knowledge can be actual (i.e., they truly know they are employing someone who lacks work authorization) or constructive (i.e., they have good reason to believe a worker lacks employment authorization) – willful ignorance will not protect the employer.
And in either case, ICE will assess numerous factors while considering the amount to penalize an employer, such as:
- The size of the company.
- The company’s good faith efforts to comply with I-9 requirements and the audit itself.
- The seriousness of the alleged violations.
- The underlying employment authorization of their workers.
- Whether the company has committed past violations.
In many cases, it may make sense to cooperate with ICE investigators as doing so lessens compliance-related financial penalties. Part and parcel of such cooperation is clearly communicating with ICE investigators in the event it will be impossible to meet the 3-day deadline, and respectfully requesting an extension of the same. ICE officers are not required to grant such a request, but they are surely much more likely to do so if the organization has shown genuine efforts to adhere to all inquiries made and conducted itself in good faith in all spoken and/or written interactions.
The best thing a U.S. employers can do to avoid issues arising from an I-9 audit is to develop, implement, and periodically review internal policies and procedures for completing and retaining all Forms I-9. Indeed, having a universally followed I-9 policy in place may not only prevent violations from occurring in the first place; the policy’s existence may decrease a fine’s amount should an inadvertent violation prove uncurable.
ICE Workplace Raids
With the notice requirement, opportunity to correct technical/procedural violations, capacity to negotiate, and discretionary factors when determining financial penalties, an I-9 audit has the potential to be a relatively collaborative exercise with ICE, even if the relationship is adversarial by its nature. A U.S. employer subjected to an I-9 audit should not consider ICE to have the business’ best interests in-mind, however, in this context, ICE has proven much more likely to work with entities to reach mutually acceptable resolutions, if/when circumstances permit.
ICE worksite raids are usually much more intense interactions than I-9 audits. There are several reasons why these raids inspire more outwardly adversarial behavior from employees, employers, and the government alike:
- The government’s methods – ICE will simply arrive at a place of business without notice, sometimes quite early in the morning, immediately make demands of the employer’s personnel to produce information, documentation, and/or an individual, and in the process sow chaos and disorder amongst staff members.
- The government’s goals – The apprehension of one or more foreign national workers allegedly on-site, the inspection of an employer’s premises, and any other evidence of civil or criminal misconduct.
- What is at stake for employers and employees – While I-9 audits can reveal the presence of civil violations and/or even criminal acts that leave an employer liable for high fines and create an existential crisis, they rarely, if ever, lead to incarceration and removal. An ICE raid, however, is seeking to locate and detain individuals – spouses, parents, coworkers, community members – before ultimately deporting them from the United States.
In such sensitive and high-leverage confrontations it is first and foremost essential that U.S. employers and all their workers remain calm, composed, and as cooperative as required given the nature of the situation. Aggressiveness and obstinance may be your first instincts but they will only worsen the situation for everyone involved.
U.S. employers – and especially those in sectors that employ more foreign national workers than others – should prepare for a potential visit from ICE by designating one or more managerial personnel at a worksite who will at least initially interface with the government officials demanding access to their facility. The employer’s leadership should create an action plan for the company’s representative to follow so they are not left to guess how to react and, in so doing, create confusion and panic amongst the workforce.
The following is a list of general action items for an employer’s ICE Raid Playbook:
1. Notify the company’s officers/executives and appropriate counsel.
2. Demand to see a search warrant.
3. If the warrant permits ICE to enter a building, the representative may indicate that even though the company does not consent to a search, it also will not impede said search.
4. Request and record officers’ identities and monitor their activities to ensure they are abiding by the warrant’s dictates. In this vein, also obtain an inventory of all items seized, signed only by the officer.
5. Do not voluntarily provide information or documentation to an officer unless it has been specifically requested and/or appears within the warrant.
6. Alert employees that they need not seek out officers for discussions and advise them that the representative (or, if executives/officers or counsel have arrived on-site) may be present for any discussions with ICE officers. Obstructing access to employees and/or counseling employees to refuse to reply to an officer’s inquiry are not allowed.
These steps are general guidelines for how to respond to an ICE worksite raid but cannot account for a business’ particular characteristics or the specific reason for the raid, much less how to manage the raid’s legal fallout and potential bad publicity. Accordingly, employers should engage experienced counsel capable of advising how to prepare and respond to an ICE raid to both minimize the chance of a raid occurring in the first place and navigate the myriad issues that may arise should a raid occur. Green and Spiegel’s immigration attorneys are well-placed to provide this class of guidance, and we invite you to contact our office should you have any questions.
