In just the last seven months, since President Donald Trump has taken office, the country has seen a proliferation of ICE (Immigration & Customs Enforcement) Encounters - I-9 audits, raids and warrants. In this article, I will explore the difference among the various encounters and how to prepare and respond to each.

Introduction

In Trump 1.0, we saw between 6,000 and 6,500 ICE I-9 audits in the two fiscal years where there were ICE audits. In FY2020, their goal was 12,000, but COVID destroyed that target. During the same two-year period, there were approximately 50 ICE raids, with the first one taking place in Bean Station, Tennessee, in April 2018. According to Border Czar Tom Homan, ICE’s goal in FY2025 is 12,000 to 15,000 ICE I-9 audits. To date, ICE has not released any data on the number of audits or raids.

Raids have returned after their discontinuance from March 2020 to January 2025. It is unknown how many ICE raids have been conducted in the last seven months, but the number is not as high as you might think because many of the ICE enforcement actions seemingly reported in the press are not actual raids. Rather, many of the actions are the service of an agency warrant, “Knock and Talk” actions without a warrant, and ICE I-9 audits with ICE agents wearing tactical gear. An agency warrant is signed by an official of the Department of Homeland Security and does not give ICE the authority to enter non-public areas of a business. If an employer receives such an agency warrant, an employer can or cannot give consent to locate the employee on premises. That decision is one for the employer. There is no right or wrong answer. “Knock and Talk” is when ICE enters the premises with a request to look around the facility. If an employer declines to consent, ICE cannot enter non-public areas.

Raids

In a worksite raid (also referred to as a targeted enforcement operation), ICE is primarily looking for criminal activity related to the employment of undocumented workers and the undocumented workers themselves. Raids are the culmination of months-long investigation into the targeted employer. Often, ICE uses a confidential informant to provide incriminating evidence.

Many employers believe they are a potential target of a raid. However, after one reviews the circumstances causing raids, most will determine they are not a likely target of a raid. To obtain a judicial search warrant signed by a U.S. District Court judge or a magistrate judge, ICE must disclose facts giving rise to a finding of probable cause. To seek such a warrant, an ICE agent must draft an Application for Search Warrant wherein all pertinent information is disclosed concerning the need for a search warrant. An employer’s location in a sanctuary city with a large Hispanic population is insufficient to be issued a search warrant. To date, there have been raids in many states, including Alabama, California, Florida, Nebraska, North Carolina, Texas and Washington.

As a result of raids, many employers will face criminal liability, including knowingly hiring or employing an undocumented worker, tax and/or wire fraud, and harboring undocumented workers. To date, Trump 2.0 has brought criminal charges against several employers and many more are expected in the next few years.

ICE I-9 Audits

Historically, this has been the most likely ICE enforcement action. In an I-9 audit, ICE agents physically deliver a Notice of Inspection and subpoena to an employer, who then has a minimum of three days to provide the requested and subpoena documents. Often, one can obtain a short extension of time — from three to 10 days, for the production of the I-9 forms. ICE does not have statutory authority to demand production of the non-I-9 items within three days of service. At time of production, the employer must provide the I-9 forms of current employees and individuals whose employment was terminated within the last year. Additionally, it must provide payroll records and other related business records within a reasonable period of time.

After review by ICE’s forensic auditor, or maybe ICE’s AI auditor, ICE may issue notices to the employer. A Notice of Suspect Documents is a notice advising the employer that after a review of the employee’s I-9 and a check of government databases, ICE determined the employee was unauthorized to work. After receipt of such notice, the employer must notify the designated employee that ICE has determined that the work authorization documentation submitted by the employee is invalid and the employee must be given the opportunity to provide other documentation to prove authorization to work. If the employee cannot provide such documentation, the employer must terminate that employee or risk a fine for knowingly employing an undocumented worker.

Another possible notice is a Notice of Intent to Fine (NIF), wherein ICE determines there have been substantive errors on the I-9 forms and/or the employer has knowingly hired/employed unauthorized workers. These NIFs keep getting larger and larger with it not being uncommon to see potential fines between $100,000 and $1,000,000. After receipt of a NIF, the employer’s counsel should seek to negotiate a lower fine. Fines can be reduced substantially in negotiations — often 25% to 40% less than the initial amount.

Preparation for an ICE Encounter

One of the most important aspects to prepare for an ICE encounter is for the employer to conduct an informal I-9 audit under the direction of an immigration compliance attorney. By conducting such, errors on the I-9 forms can be remediated, except for the timely completion of I-9 forms, which is covered by a five-year statute of limitations. Additionally, if the employer retains the supporting documentation, the audit can identify any documents that are suspected as fraudulent and investigate the situation.

If the employees are represented by a union, the union may request to bargain over the effects of an internal I-9 audit, such as the length of time employees have to remediate the I-9 by producing new documentation, whether the employees will be placed on leave if they cannot promptly provide new documentation, and any severance pay, if discharged for being unauthorized to work.[i]  If, as a result of the informal I-9 audit, an employer decides it wants to implement and enroll in E-Verify in a non-E-Verify state, it must bargain upon request with the reason over said enrollment.[ii]

Employers also need to have a plan of action on what to do if there is an ICE encounter. Each type of ICE encounter has distinct aspects of an employer response. For an ICE I-9 audit, the employer needs to be prepared for the right employee, HR manager, plant manager, etc., to accept the Notice of Inspection / subpoenas, and immediately communicate with legal counsel about the employer’s response. For an ICE raid, there is little that an employer can do except to obtain a copy of the search warrant, walk around with the ICE agents during the search, and obtain a copy of the list of seized documents. As for the agency warrant, this is where an employer has the most discretion. Because it is not a judicial warrant, an employer need not consent to any search of non-public areas and can decline to produce any employee listed on the warrant. However, it may comply with the agency warrant if it so desires. There is no perfect answer to this question, but employers need to have a consistent plan of action. Concluding the agency warrant, unions may request bargaining over an employer’s decision as to whether to consent to the search. Because this may affects the terms and conditions of employment, it is a mandatory subject of bargaining.

Conclusion

Every employer should be prepared to react to an ICE encounter, if one occurs. Through effective planning and training, any ICE encounter will not seem foreign to your management clients.

Bruce E. Buchanan is senior counsel at Littler Mendelson’s Nashville office, where he advises employers on immigration compliance issues, represents employers in ICE inspections/audits and DOJ/IER investigations, and conducts internal I-9 audits. Also, he practices labor law where he represents employers before NLRB and DOL’s Wage & Hour Division. Buchanan may be reached at bbuchanan@littler.com or (615) 540-3092.