Preparing Employers for Increased ICE Immigration Compliance Enforcement Actions

By: Hector Chichoni, Esq.

Employers across industries are facing heightened scrutiny from Immigration and Customs Enforcement (ICE) on workplace immigration compliance. HR professionals and business owners should take proactive steps now to strengthen compliance programs, mitigate risk, and ensure operational continuity in the event of an audit or investigation.

To prepare for increased ICE enforcement, employers must develop clear response plans, train staff on I-9 compliance, conduct regular internal audits, understand their rights and ICE’s access limitations (warrants), designate a response team with legal counsel, and ensure employees know their rights (silence, legal counsel) while prohibiting obstruction. Proactive measures like risk assessments and overseeing subcontractors are crucial to prevent issues like knowingly hiring unauthorized workers, which carries severe penalties.

Overview of ICE and Its Enforcement Role

ICE is the principal federal agency responsible for enforcing immigration laws within the interior of the United States, with a mandate that includes worksite enforcement. ICE conducts civil and criminal investigations targeting unauthorized employment, document fraud, and employer non-compliance. Core enforcement tools include Notices of Inspection (NOIs) for Form I-9 audits, civil fines, debarment referrals, and, in cases involving knowing or reckless violations, criminal investigations.

Recent Trends and Announcements

Recent federal enforcement posture signals an increased focus on worksite compliance, including more frequent NOIs, targeted industry sweeps, and coordinated audits across corporate locations. Employers may also see enhanced information sharing among agencies, greater emphasis on repeat violators, and scrutiny of electronic I-9 systems and remote verification practices.

Important Compliance Areas for Employers

1. Form I-9 Verification: Employers must timely and accurately complete Form I-9 for each employee, ensuring proper documentation review, reverification where required, and retention within prescribed periods. Particular attention should be paid to Section 2 completion timing, document authenticity assessment, and avoiding document abuse or discriminatory practices.
2. Record-Keeping and Retention: Maintain I-9s separate from general personnel files for ease of audit. Observe retention rules tied to termination dates. Establish consistent naming conventions and indexing for quick retrieval across locations and entities.
3. Worksite Audits and NOIs: Prepare for short response windows to NOIs. Standardize audit-readiness binders that include I-9s, hiring and reverification policies, E-Verify enrollment status and records (if applicable), SSA no-match response procedures, training logs, and prior audit correspondence.
4. E-Verify and Electronic Systems: Where used or required, ensure E-Verify is implemented in accordance with program rules. Validate that electronic I-9 platforms meet regulatory standards for data integrity, secure access, audit trails, and electronic signatures.
5. Vendor and Contractor Management: Assess immigration compliance representations, warranties, and indemnities in vendor agreements. Avoid joint-employment pitfalls by defining roles and monitoring labor providers’ practices.
6. Anti-Discrimination Compliance: Align hiring and reverification practices with anti-discrimination laws. Ensure consistent treatment of workers irrespective of citizenship or national origin and avoid over-documentation.

Best Practices to Ensure Compliance

1. Governance and Policies: Adopt a written immigration compliance policy approved by leadership.
2. Training and Competency: Conduct initial and periodic training for I-9 preparers, reviewers, and managers. Include modules on document inspection, avoiding discrimination, E-Verify steps (if applicable), and escalation protocols. Maintain attendance logs and training materials.
3. Internal Audits and Remediation: Perform periodic self-audits using a risk-based sampling approach or full reviews for high-risk sites. Correct technical errors following approved procedures, document remediation, and track completion.
4. Centralization and Quality Control: Centralize I-9 processing where feasible to improve consistency. Use checklists and dual-review for high-volume locations.
5. Document Management and Retention: Segregate active and terminated employee I-9s. Implement automated ticklers for reverification and purge dates.
6. Legal Consultation: Engage experienced immigration and employment counsel to review policies, conduct privileged audits, advise on complex cases (e.g., TPS, asylum EADs, name discrepancies), and interface with ICE during audits or investigations.

Potential Consequences of Non-Compliance and Risk Mitigation

1. Consequences: Employers may face civil fines for paperwork and substantive violations, back pay or reinstatement remedies in discrimination cases, loss of government contracts, debarment referrals, and, in egregious situations, criminal liability. Public enforcement actions can also cause reputational harm and operational disruption.
2. Mitigation: Demonstrate good-faith compliance efforts through documented policies, training, and remediation. Voluntarily correct errors where permissible and promptly address systemic issues. Implement escalation procedures for suspected fraud or identity issues that respect anti-discrimination rules.

Practical Implementation Tips

• Standardize forms, checklists, and SOPs across all hiring channels, including remote onboarding.
• Use a Measure-Perform-Review-Adapt (MPRA) framework as a disciplined, practical, and tested approach for developing and implementing a Key Performance Indicator (KPI) system. Implement a quarterly KPI dashboard tracking error rates, reverification timeliness, training completion, and audit findings.
• Schedule an annual privileged mock audit and a mid-year targeted review for high-risk locations.
• Update vendor contracts within 3 to 6 months to include immigration compliance covenants and audit rights.

Preparation Steps

1. Develop a Written Response Plan: Create a detailed policy for raids/audits, including communication chains (legal, HR, management) and designated points of contact.
2. Train Staff: Educate frontline staff (reception, security) on how to interact with agents and train HR on updated I-9 best practices.
3. Ensure I-9 Compliance: Conduct regular internal audits, correct errors, and ensure proper documentation for all employees.
4. Know Your Rights and ICE’s Limits: Understand the difference between administrative (I-9 audit) and judicial (warrant) orders; ICE needs judicial warrants for private areas.
5. Designate a Response Team: Appoint a calm, cooperative representative to manage ICE interactions and document everything (agent names, scope of warrant, seized items).
6. Prepare for Audits: Be ready to produce I-9s within three business days of receiving a Notice of Inspection.
7. Engage Legal Counsel: Work with experienced immigration lawyers to build compliance programs and navigate challenges.

In Case of an Enforcement Action

Stay calm and be cooperative. Don’t obstruct or provide false information. More importantly, do not destroy, delete, or remove information. Review any warrant carefully to understand its scope. Document everything and contact your lawyer. Proactive action today is the most effective defense against tomorrow’s enforcement risks.