Immigration enforcement in the workplace: Employer best practices

As immigration enforcement efforts intensify, businesses must proactively ensure compliance and preparedness. Workplace visits from the U.S. Immigration and Customs Enforcement (ICE) can be disruptive, but with proper planning, employers can minimize legal risks and maintain a calm and orderly work environment. 

Understanding ICE actions
Immigration enforcement in the workplace generally falls into two categories – notices of inspection (NOIs) and on-site inspections or raids. Employers should be aware of these processes and their potential impact on operations.

An NOI is a formal request from ICE requiring an employer to provide employment verification records, typically within three business days. These can be triggered by targeted enforcement efforts in high-risk industries, referrals from agencies like the Department of Labor, or employee whistleblower reports. Employers should take the requests seriously, but recognize that the three-day deadline is not a rigid rule and can often be negotiated with legal counsel.

On-site ICE visits are more immediate and typically happen when the department is actively investigating a specific employee or employer suspected of violating immigration laws or when they are attempting to confirm unauthorized hiring practices. Employers should understand the difference between administrative warrants, issued by ICE, which do not allow the agents to enter private areas without consent, and judicial warrants, issued by a federal judge, which grant full access for searches and arrests. Managers should be trained to request and verify warrants before allowing agents into non-public spaces.

Developing a response plan
To reduce the risks associated with ICE enforcement actions, businesses should establish clear response protocols. Employers should never alter or destroy records in response to an NOI, as any attempt to "fix" documentation can result in severe penalties. Providing false information is equally problematic and can expose organizations to legal action. Additionally, employers must not discriminate against workers under investigation. Retaliatory actions, such as firing, suspending, or intimidating based on immigration status, are unlawful.

Employees should also be aware of their rights during an ICE investigation. They have the right to remain silent and the right to consult an attorney before responding to inquiries. However, it’s important to note that noncitizens do not have the right to a public defender or court-appointed counsel in immigration proceedings. Employees should also be encouraged to carry copies, not originals, of their work authorization documents to quickly verify their status if questioned. Finally, employers should not share workforce information unless legally required to do so and avoid voluntarily disclosing additional details beyond what is necessary.

Strengthening hiring compliance
Maintaining strong hiring and recordkeeping practices is essential to avoiding compliance violations. Regularly auditing hiring processes, including Form I-9 verification and E-Verify usage, can mitigate risks. Proper completion and maintenance of forms should be a top priority, with hiring managers trained to ensure compliance. 

A common mistake is failing to reverify expiring work authorizations, such as Employment Authorization Documents (EADs). Employers should proactively track expiration dates and follow up with employees before documents lapse.

As a reminder, I-9 forms must be retained for at least three years after an employee’s hire date or one year after termination, whichever is later. Employers should avoid keeping outdated or unnecessary records, as disorganized documentation can create challenges during an audit. 

E-Verify, while optional for some businesses, is mandatory in certain states and for federal contractors. Employers should make sure they understand the requirements of E-Verify Plus and be familiar with the Tentative Non-Confirmation (TNC) process. Proper procedures must be followed to certify employees receive Further Action Notices (FANs) and Final Non-Confirmations (FNCs) appropriately. 

Training for compliance and employee support
Regular training for managers and HR professionals is essential to maintaining compliance and reducing workplace disruptions. Harassment and whistleblowing policies should be reinforced to prevent workplace gossip about ICE visits, which can lead to panic and absenteeism. 

Employers should also train managers on handling Social Security no-match letters properly. Taking adverse action against an employee based solely on a Social Security number discrepancy can be unlawful. Instead, employers should follow Social Security Administration (SSA) guidelines and allow employees the opportunity to correct any errors.

Supporting employees is just as important as compliance. Immigration enforcement can create anxiety among workers, even those with legal status. Employers should ensure that managers do not disclose sensitive information that could cause unnecessary fear. 

Final takeaway
With ICE audits and enforcement actions on the rise, employers must remain vigilant in implementing strong hiring policies, maintaining accurate records, and training managers on proper protocols. A proactive approach to compliance protects businesses from legal and financial penalties and fosters a workplace environment where employees feel secure.