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Proper research, preparation and advice will help you weather possible ICE investigations with confidence
There’s no question that the immigration landscape in the United States has shifted rather significantly since President Trump re-assumed office in early 2025. Given the dizzying pace of executive orders, heightened border protection policies and crackdowns on illegal immigrants, court challenges to deportations and U.S. travel advisories issued by the Canadian and several European countries’ governments to their citizens, it’s little wonder many multinational employers are concerned about how to best protect their global workforces and brand reputations. Significantly increased activity by the U.S. Immigration and Customs Enforcement (ICE) may very well mean your business could be a candidate for a workplace visit and onsite inspection.
The first and most important things to do are to know your rights, and stay calm. The arrival of ICE officials at any of your facilities could be driven by the relatively routine protocols of an I-9 documentation audit, an investigation into a specific individual and their employment status, a response to USCIS’ H-1B Benefit Fraud Analysis report, or a broader effort to uncover and expose knowing and egregious hiring violations. If you’ve done your due diligence and engage in your own regular processes of internal checks and reviews – including Form I-9 internal compliance audits – you and you’re your team should have little cause to worry.
The Dos and Don’ts
It’s important to keep in mind that much of the activity making news headlines is focused on individuals entering and remaining in the country illegally, particularly those with criminal records or convicted of crimes while in the U.S. Nevertheless, now is the time to be extra vigilant to ensure that any foreign national you sponsor to work within the United States has the proper and valid authorizations, they are up-to-date, and those individuals are engaging in the specific work in the location and at the appropriate salary level for which their authorizations apply.
If you have employees who work offsite or at multiple locations, your petition documents should clearly identify their specific itineraries.
Should your business receive a visit from ICE, you should:
- Verify proper and valid credentials and confirm the specific reason why they are there. ICE representatives will have official badges and, depending on what’s driving the visit, may have a warrant or subpoena, which you are entitled to see and copy. If you work with internal or outsourced immigration legal professionals, inform them right away and ask for their assistance in validating all paperwork. Document the names and badge numbers of the ICE agents, the time and reason for their visit and be sure to retain copies of any supporting documents they supply.
- Understand the distinct types of warrants and what they mean. Generally, ICE agents do not have carte blanche rights to enter what are considered “non-public” sections of your offices or facilities. If they arrive with supporting documentation, it will typically be one of two types: Administrative or Judicial. Administrative warrants are produced by federal enforcement authorities and do not bear a judge’s approval, but may direct officials to arrest or detain a specific individual. Judicial warrants, just as the name implies, are signed by a judge, and grant ICE agents access to specific areas of your facilities and the right to review certain documents as outlined. It may be a good idea to clearly differentiate non-public areas of your workplace, with signage indicating which areas are considered private.
- Know your rights and responsibilities. Understand what you as an employer are obligated to do to ensure legal compliance, while also being fully aware of any limitations that may restrict what activities ICE agents may engage in onsite. Your employees have the right to decline to answer if questioned by ICE officials, and to request to speak to an attorney. If the visit is the result of an I-9 investigation, you should be given a Notice of Inspection (NOI) and have at least three business days to supply the requested forms and any supporting documents.
If presented with an ICE visit, you should not:
- Advise employees not to cooperate – it’s sufficient to let them know they have the right to remain silent and request legal counsel.
- Tamper with or destroy any documents. Any attempts to do so, either in anticipation of, at the time of or after an inspection, can lead to criminal charges. Providing false or misleading information can also carry heavy penalties and possible criminal convictions.
- Avoid any retaliatory action – any efforts to fire, harass, punish or discriminate against employees who are subject to ICE questioning or investigations are considered retaliatory and illegal.
- Share any employee information without consent – unless specially and legally obligated to, you should take care not to divulge any personal information without direct and explicit permission from your employees.
Increased scrutiny from immigration authorities is understandably a cause for concern for employers and employees alike. The adage that an ounce of prevention is worth a pound of cure certainly applies here – conduct your own rigorous internal audits, consult with your immigration experts to stay informed of your rights and responsibilities and engage in careful record keeping and document preservation. Follow these steps, and you’ll be ready to handle any inspections with confidence and composure.
