In this episode of The Workplace podcast, CalChamber Associate General Counsel Matthew Roberts and immigration law experts Greg Berk and Andrew Desposito discuss employer obligations during federal immigration raids and audits.
As the new U.S. presidential administration takes hold, employers are facing a ramp up in immigration enforcement, including raids and I-9 audits.
The Role of ICE in Workplace Immigration
Berk, partner at Sheppard Mullin, explains that Immigration and Customs Enforcement (ICE) is the primary federal agency responsible for enforcing workplace immigration laws. Within ICE, there are two key divisions involved in enforcement: Homeland Security Investigations (HSI) and Enforcement and Removal Operations (ERO). HSI handles I-9 audits and broader investigations, including human trafficking, while ERO focuses on identifying, detaining, and removing individuals deemed removable due to immigration violations.
Workplace enforcement actions are often triggered when ICE conducts I-9 audits, which typically involve reviewing employee documentation for work authorization, Berk says. These audits can be initiated by a visit from an ICE agent, who will ask the employer to provide I-9 forms and related documents for their review.
Employers are required to comply with these requests, but they can ask for additional time to gather the necessary information.
California’s Special Requirements for I-9 Audits
California employers face additional legal considerations when dealing with federal I-9 audits, Desposito, special counsel at Sheppard Mullin, says. During the first Trump administration, California enacted laws designed to counter federal immigration policies. One such law mandates that employers must notify employees within 72 hours of receiving an audit notice. Additionally, California businesses are prohibited from voluntarily allowing ICE agents to enter non-public areas of their premises unless the agents have a warrant or other legal authority.
“It’s going to be on a fact-by-fact basis, on whether or not the officer will go any farther, but the employer should still be complying with the request to try and comply with the request,” Desposito says.
Desposito explains that if ICE finds discrepancies in an employer’s I-9 records, the agency may issue a notice of suspect documents, meaning that they believe these individuals do not have proper documents for work authorization and those individuals will need to be let go.
ICE may also choose to levy fines for non-compliance. Employers must respond to these notices by either paying the fine or appealing the decision.
Raids and How Employers Should Respond
While I-9 audits are a routine part of immigration enforcement, workplace raids have made headlines in recent months, leaving employers concerned about how to respond.
Berk explains that recent raids are typically triggered by the presence of non-citizens with criminal convictions, and ICE agents may arrive at a business with a civil administrative warrant to arrest the targeted individual. Employers are not obligated to cooperate with a civil warrant, but Berk recommends that employers cooperate.
“If an employer is not going to cooperate, they’re probably going to bring on more trouble on themselves, because ICE has a lot of tools in their toolbox, including launching an I-9 audit and so on,” he says.
Berk notes that his office has recently heard that ICE is under pressure to make more arrests, which means they may start trying to arrest bystanders.
In rare cases, an agent may have a criminal warrant signed by a judge, and the employer must cooperate with the ICE agent.
Berk advises employers to have a clear protocol in place. This includes designating a point of contact to manage the situation and potentially consult with legal counsel to ensure compliance. Employers should be cautious not to inadvertently hinder law enforcement while also protecting their business operations.
Mitigating Fear, Confusion
Amid heightened immigration enforcement actions, many employers may receive inquiries from immigrant employees who are authorized to work in the United States legally and are concerned about their immigration status.
Desposito encourages employers to be proactive in addressing these concerns. By reminding employees to stay on top of their work authorization documentation and encouraging timely renewals, businesses can help prevent lapses that might result in legal issues.
Anti-Discrimination Laws
As employers navigate immigration enforcement, they must also be mindful of anti-discrimination laws.
The Department of Justice (DOJ) has an aggressive unit called Immigrant and Employee Rights (IER), and their mission is to go after employers who accidentally, unlawfully deny employment, even if they had the best intentions, Berk says.
Employers are barred from asking about immigration status until a job offer is made, and even then, employers should not ask about immigration status, he says. The first time the employer is able to find out about immigration status is when the job candidate fills out the I-9 form.
The only question that employers may currently ask is if the applicant will need a visa sponsorship to work for them today or in the future. That is the only question an employer may ask, Berk stresses.
If a prospective employee fills out an I-9 and they have temporary work authorization, Berk recommends that employers consult with legal counsel.
“If you got it wrong, DOJ will make your life very difficult. They’ll start an audit and paper you to death,” Berk warns.
