On January 20, 2025, the Trump Administration issued the ‘Securing Our Borders‘ Executive Order, directing the Secretary of Homeland Security, the Secretary of Defense, and the Attorney General to implement the President’s policy agenda through:
(1) the establishment of a physical wall and other barriers
(2) prevention of illegal aliens from entering the United States
(3) the detainment of aliens apprehended on “suspicion of violating Federal or State law”
(4) the removal of all aliens who enter or remain in violation of federal law
(5) the pursuit of criminal charges against illegal aliens who violate immigration laws
(6) the obtainment of complete operational control of the borders of the United States
One of the Trump Administration’s key goals is to redefine the landscape of immigration in the U.S. and reshape its future direction. Executive Orders aimed at reshaping the core principles of immigration will have a significant impact on foreign workers and employers across all industries. Immigration enforcement will play a critical and essential role in these changes, affecting how businesses manage their workforce and adhere to new regulations. As demonstrated by the ongoing raids across the country, employers—especially those in targeted industries—are likely to face more aggressive worksite enforcement actions. These could include Form I-9 audits, immigration raids, and workplace inspections, all of which have the potential to jeopardize the stability of their businesses.
Enforcement actions typically take two forms: scheduled audits (such as I-9 inspections) and unannounced on-site raids (e.g., immigration raids conducted under a judicial warrant to detain undocumented workers). Even if an employer thoroughly verifies the work authorization of all employees, the Department of Homeland Security (DHS) may still investigate a workplace based on a tip, complaint, or other factors. This alert focuses specifically on unannounced raids, which pose a unique challenge for employers, as they occur without prior notice and can severely disrupt business operations.
Given this, businesses must ensure they are informed and prepared to respond to any immigration-related activities, including knowing what actions to take if DHS officials make unannounced visits to their workplace. DHS is responsible for immigration enforcement via Immigration and Customs Enforcement (ICE) and Homeland Security Investigations (HSI).
ICE is tasked with the arrests and deportations of individuals. HSI focuses on workplace enforcement operations and is generally responsible for conducting workplace raids. HSI employs a three-pronged approach to worksite enforcement:
- Compliance: This includes conducting I-9 inspections, issuing civil fines, and making referrals for debarment
- Enforcement: This involves criminal arrests of employers and administrative arrests of unauthorized workers
- Outreach: HSI works to foster a culture of compliance and accountability within businesses through proactive education and training
Unannounced raids typically involve questioning employees, detaining or arresting those suspected of violating immigration laws, conducting unrestricted searches of public areas within a business, and seizing business records, including payroll records, I-9 forms, financial documents, and electronic devices such as computers and phones.
During these raids, employers may face immediate scrutiny, and the agents’ actions can put both the business and its employees under intense pressure. Employers found to have knowingly hired undocumented workers can face various types of consequences.
During these uncertain times, preparation is crucial and having a written worksite enforcement action plan in place for all employees to follow can play an essential role in navigating this complicated process. Highlighted below are several recommendations to ensure compliance while protecting a business and its employees if ICE or DHS knock on to their doors.
What an Employer should do if ICE or HSI arrive at their workplace:
- Appoint a Company Representative(s)
- This individual should be responsible for speaking and communicating with ICE/DHS in a calm and professional manner
- Having a trained designated company representative(s) will allow for clear, concise communication in dealing with ICE or HSI
- Company representative(s) help to maintain company stability during investigations
- Contact Your Attorney(s)
- The company representative should promptly contact the company’s immigration attorney and legal counsel to ensure proper legal guidance and support
- Inform ICE or HSI that it is company policy to contact its lawyer(s) before proceeding with any actions
- Request to See Officer/Agents Identification and Request Reason/Scope of Visit
- Confirm the identity of the officers by requesting their credentials
- Request and review any valid judicial search warrant (signed and dated by a judge) to understand what can be searched and ensure the search is within the scope of the warrant (i.e., the areas to be searched and the items to be seized)
- An administrative warrant does not authorize agents to enter a business or any private area without permission. It is issued by a federal agency, such as DHS, and it is not signed by a judge. Examples include Form I-200 (DHS Warrant for Arrest of Alien) or Form I-205 (DHS/ICE Warrant of Removal/Deportation)
- Understand the Scope of Operations
- The search warrant will specify the timeframe for the search, describe the premises to be searched, and list the items to be seized (e.g., payroll records, employee identification documents, Forms I-9, SSA correspondence, etc.)
- Immigration officers are allowed to enter any public areas within your workplace but must have a valid search warrant or consent to enter non-public areas
- Depending on the nature of a company’s business, HSI may require equipment to be shut down and may prevent employees from leaving the premises without permission
- HSI may also move employees into a contained area for questioning
- Understand Your Rights and Responsibilities as an Employer
DO’s:
- Write down the name of the supervising agent(s) and the U.S. attorney assigned to the case
- Understand the areas to be searched and the items to be seized, and allow agents access accordingly
- Ensure at least one company representative accompanies each agent around the facility as they execute the warrant
- Document every step of the encounter, taking notes or videotaping the officers’ actions
- Make note of all seized items and ask if copies can be made before they are taken
- Object to any search that goes beyond the scope of the warrant
- Protect privileged materials
- If agents wish to examine attorney-client privileged documents (such as correspondence with your attorney), inform them of the privilege and request that those documents not be inspected until you have spoken to your attorney
- Request an inventory list of all items seized during the search
- Inform employees that they have the choice to speak or not speak with federal agents, but do not direct them to refuse questioning
DONT’s:
- Do not block or interfere with federal agents’ activities
- The company representative should not make any statements to federal agents or allow themselves to be interrogated before consulting with an attorney
- Do not hide employees or assist them in leaving the premises without permission
- Do not provide false or misleading information, falsely deny the presence of named employees, or destroy or obscure documents
- Do not retaliate against employees who are subject to a warrant or an investigation
- Understand Employees’ Rights
- Employees have the right to remain silent and the right to an attorney
- Employees may refuse to show identity documents that disclose their country of nationality or citizenship
- If employees are detained or taken into custody, designate someone to notify their families and ensure any outstanding payments are made
- Consult with a labor attorney for further guidance
HSI/ICE investigations can be both nerve-wracking and burdensome for businesses and their employees. It is crucial to always maintain accurate I-9 records, be well-prepared, understand your rights, and have a clear plan in place. Proper and consistent Form I-9 recordkeeping is essential to ensuring business stability. This proactive approach will help safeguard your business during these challenging times.
Portions of the information contained in this Alert were derived from the American Immigration Lawyers Association (AILA).
This alert is meant to offer general information and understanding of the law, not specific legal advice. Receiving this communication does not establish an attorney-client relationship, and the content should not replace legal advice from a licensed attorney in your jurisdiction.
Cristina Perez is a Partner in Leech Tishman’s Immigration and Labor & Employment Practice Groups and is based out of the firm’s Los Angeles office. She can be reached at cperez@leechtishman.com.
To stay up to date with the Trump Administration’s Executive Orders, please visit our Executive Order Legal Tracker.