By Alexandra Mitropoulos, Tierra Jenkins, Laurie Bishop January 29, 2025
On January 20, 2025, President Donald Trump issued a series of Executive Orders, including one titled “Securing Our Borders”, announcing policies to expedite the removal of undocumented individuals, pursue criminal charges against those violating immigration laws, and detain individuals pending deportation. Subsequent directives from the Department of Homeland Security (DHS) and the passage of the Laken Riley Act have further empowered U.S. Immigration and Custom Enforcement agents (ICE) to conduct widespread immigration enforcement actions, including workplace inspections, unannounced visits, and Form I-9 audits.
In this rapidly changing legal environment, employers—particularly those with large immigrant workforces—must be prepared for increased scrutiny and enforcement. Below are key steps employers can take to prepare for potential inspections and protect their workplaces while complying with federal law.
How Employers Can Prepare
1. Ensure that the Employment Eligibility Verifications are completed for all employees
Federal law requires employers to complete employment eligibility verification forms (also known as I9 forms) to verify that each employee is authorized to work in the United States. Employers must make certain that every employee, including U.S. citizens and non-citizens alike, present valid documentation verifying their identity and their eligibility to work in the U.S. and that these forms are completed timely. Employers must have newly hired workers complete and sign Section 1 of Form I-9 no later than their first day of employment. Employers must review the employee’s documents and fully complete Section 2 of the I-9 form within three business days of hire. Failure to maintain the required I-9 forms or knowingly employing unverified individuals has legal consequences that should be discussed with counsel promptly.
Employers that receive notice of a Form I-9 audit from DHS typically will have three business days to produce their I-9 forms. Employers who receive such notices should immediately contact counsel with expertise in handling these audits and should also consider requirements to notify employees and, if applicable, their union representative, of the Form I-9 audit.
If, after reviewing the I-9 forms, ICE determines that some employees are not authorized to work, the employer typically has 10 days to provide valid work authorization for these employees. In such cases, it will be important to notify the affected employees of the audit findings and the deadline to provide valid work authorization documentation.
2. Establish a Protocol
It is important for employers to establish a protocol in the event of an unexpected visit or inspections from federal or local law enforcement in the workplace. An internal communication plan should be in place to control the flow of information and lessen the disruptions to business operations. In developing this protocol, employers should consider:
a. Creating a Written Plan
Employers should draft a written plan that includes detailed steps for responding to inspections, including who to contact, how to manage interactions with law enforcement, and how to document the incident.
b. Designating a Liaison
Employers should designate a manager, supervisor, or other trusted staff member to serve as the liaison to senior level management if law enforcement agents arrive. The liaison should be comfortable communicating with agents and should be educated on the employer’s rights during such encounters. The liaison should immediately contact a supervisor and/or legal counsel to notify them of the inspection. If the liaison is not available at the time of the inspection, frontline staff should be trained to immediately contact a supervisor, legal counsel, or other designated individual for guidance before providing agents with information or allowing them access to the premises. Always contact legal counsel to report the presence of federal agents or when in doubt as to the appropriate response.
c. Training Staff
Employers should train staff on what to do during an inspection, emphasizing professionalism and the importance of contacting the liaison immediately. Employers should inform all staff to remain calm should law enforcement agents visit their workplace and avoid escalating what will most likely already be a tense situation.
3. Know Your Rights
If law enforcement agents request access to an employer’s facilities, asks an employer to identify immigrant employees or program participants, or requests access to documents, employers can and should ask them to produce a valid warrant. If the agent presents a warrant, legal counsel should review the document to ensure it is valid, signed by a judge or magistrate, bears the address of the premises to be searched, provides a time period in which the warrant may be executed, and describes the scope of the search.
If a valid warrant is presented, employers are only obligated to provide the specific information requested in the warrant. If federal agents insist on conducting an inspection, either with or without a warrant, employers should not prevent them from entering the premises. In this event, ask for the agent’s name, badge or copy of their agency identification. If they refuse to identify themselves, document what information is available, including the names of any of the agents, the date and time of their arrival, what was discussed, and what information was retrieved, then contact counsel immediately. For unionized employers, the union representative should be informed of any inspections or the detainment of any union employees.
4. Be Aware of the Potential Legal Consequences
Although employers have certain rights, be mindful that any actions or attempts to exercise those rights do not interfere with federal law enforcement inspections. Employers can and should disseminate written protocols to their staff, so long as the communications are accurate, do not impede the duties of federal law enforcement, and do not instruct or advise staff on ways to evade inspection or detainment. Legal counsel should review all communications before they are distributed.
Final Thoughts
Employers face significant challenges in navigating the evolving immigration enforcement landscape. By staying informed, maintaining compliant documentation, and preparing for unannounced inspections, employers can minimize risk and disruption. Regularly consult with legal counsel to stay up to date on changes in law and implement best practices to protect your workplace and employees.
For questions or a referral to an experienced immigration attorney, please contact:
• Tierra Jenkins (tjenkins@hrwlawyers.com / 617-348-4331);
• Alexandra Mitropoulos (amitropoulos@hrwlawyers.com / 617-348-4332);
• Laurie Bishop (lbishop@hrwlawyers.com / 617-348-4345); or
• Any member of the HRW Team.
