Navigating Workplace Raids and I-9 Audits: Key Guidance for Employers

As a new U.S. presidential administration takes office, employers must prepare for increased immigration enforcement, including workplace raids and I-9 audits. These enforcement actions are primarily led by Immigration and Customs Enforcement (ICE), which has two key divisions responsible for workplace immigration compliance: Homeland Security Investigations (HSI) and Enforcement and Removal Operations (ERO). HSI focuses on I-9 audits and broader investigations, while ERO handles the identification and removal of individuals with immigration violations.

The Role of ICE in Workplace Immigration

ICE routinely conducts I-9 audits, requiring employers to produce documentation verifying their employees’ work authorization status. These audits can begin with an ICE agent’s visit, during which they request to review I-9 forms and related documents. While employers are legally required to comply, they may request additional time to gather the necessary records.

California’s Special Requirements for I-9 Audits

California employers face additional legal obligations during I-9 audits. Laws enacted during the first Trump administration impose specific restrictions on employer cooperation with federal immigration enforcement, including:

• 72-Hour Employee Notification Requirement: Employers must notify employees within 72 hours of receiving an I-9 audit notice.
• Restricted Workplace Access: Employers cannot voluntarily allow ICE agents into non-public areas of their premises unless the agents have a judicial warrant or other legal authority.

If ICE identifies discrepancies in an employer’s I-9 records, they may issue a notice of suspect documents. This means certain employees are deemed unauthorized to work and must be terminated. Non-compliant employers may face fines, which they can either pay or appeal.

Raids and How Employers Should Respond

While I-9 audits are routine, workplace raids have become more frequent, raising concerns among employers. These raids are typically prompted by the presence of non-citizens with criminal convictions. ICE agents may arrive at a business with a civil administrative warrant to arrest a specific individual. Employers are not required to cooperate with a civil warrant but should carefully evaluate their response.

A criminal warrant, signed by a judge, requires full employer cooperation. Legal experts advise having a clear response protocol, including:

• Designating a point of contact to handle ICE interactions.
• Consulting legal counsel to ensure compliance with laws and regulations.
• Avoiding actions that could obstruct law enforcement while protecting business operations.

Mitigating Fear and Confusion Among Employees

Heightened immigration enforcement has created uncertainty among employees, including those authorized to work in the U.S. Employers should proactively address these concerns by:

• Reminding employees to keep work authorization documents up to date.
• Encouraging timely renewals to avoid lapses that could create legal risks.

Anti-Discrimination Laws and Employer Compliance

Employers must also ensure they comply with federal anti-discrimination laws while navigating immigration enforcement. The Department of Justice’s Immigrant and Employee Rights (IER) unit aggressively pursues employers who inadvertently deny employment due to immigration-related issues. To remain compliant:

• Employers cannot ask about immigration status before a job offer is made.
• The only permissible question during hiring is whether the applicant will require visa sponsorship now or in the future.
• Employers should consult legal counsel if a candidate presents temporary work authorization.

Mishandling these processes can lead to DOJ investigations, extensive audits, and significant legal costs. By implementing strong compliance practices and response protocols, businesses can navigate workplace immigration enforcement while safeguarding their workforce and operations.