Before ICE Knocks: Preparing Your Business for I-9 Audits and Raids

Understanding the I-9 inspection process is essential, but proactive preparation is even more critical. This article outlines what to expect during an I-9 audit, how to respond to a workplace raid, and the best ways to reduce the risk of violations before Immigration and Customs Enforcement (ICE) ever arrives.

THE I-9 AUDIT PROCESS (SOURCE)

Federal law requires employers to verify each employee’s identity and work eligibility using Form I-9. ICE enforces this requirement through I-9 audits designed to catch violations and deter illegal hiring.

An I-9 audit begins when ICE serves a Notice of Inspection (NOI). Employers then have three business days to turn over all I-9 forms and other requested documents, such as payroll records, E-Verify confirmations, or independent contractor information. If your business receives an NOI, contact legal counsel immediately. Your attorney can help review forms, correct errors where allowed, and request an extension if necessary.

After reviewing records, ICE will either issue a Notice of Inspection Results (no violations found) or notify the employer of any problems. If ICE cannot verify an employee’s work authorization or detects issues with the documents provided, the employer may receive:

• Notice of Suspect Documents: ICE believes certain documents are fake or unrelated to the employee.
• Notice of Discrepancies: ICE could not verify an employee’s work authorization.

In both cases, the employer must give the affected employee a copy of the notice so they can respond with valid documentation.

ICE may also issue:

• Notice of Technical or Procedural Failures: The employer has 10 business days to correct paperwork errors.
• Notice of Substantive Violations, which can lead to:
  • Warning Notice: No fine, but future compliance is expected.
  • Notice of Intent to Fine: Issued when the employer has a history of violations, ignored prior warnings, failed to complete I-9s, hired unauthorized workers, or engaged in fraud (such as backdating forms).

Bottom line: I-9 audits can result in significant financial and legal consequences. Do not wait for ICE to show up—get ahead of potential problems by ensuring compliance now.

ICE RAID VS. AUDIT: WHAT TO DO WHEN IT’S NOT JUST PAPERWORK

Not all enforcement actions are announced. In some cases, ICE conducts workplace raids, arriving unannounced with a warrant and requesting to speak with specific employees suspected of being unlawfully employed. These situations unfold quickly, carry high stakes, and can severely disrupt operations, so having a plan is critical.

If ICE agents arrive at your workplace:

• Contact Legal Counsel Immediately: Train your receptionist or front-line staff to notify a manager, who should immediately call your attorney. You may request that ICE wait while you contact legal counsel.  Do not sign anything until your lawyer reviews it.
• Inquire about the Agents and Scope of the Investigation: Ask the agents to identify themselves by producing their badges (which should have references to the Department of Homeland Security or ICE) and record their badge numbers.  Ask about the purpose of their visit. ICE agents may be serving notice of a routine audit, conducting an investigation, or seeking information about a specific employee.
• Request and Review the Warrant: ICE must have a judicial warrant signed by a judge to access non-public areas. Administrative warrants (like Form I-200 or I-205) do not grant this access. Ask for a copy and send it to your attorney.
• Monitor and Document: Assign someone to calmly accompany agents, take notes, and record what happens (if allowed). Make notes of anything ICE seizes and request a copy of the property receipt and search warrant inventory log.
• Protect Confidential Materials: If agents try to take attorney-client privileged documents, identify them and ask that they not be reviewed until legal counsel is involved. You cannot stop the seizure, but you can preserve the right to challenge it later.
• Do Not Interfere: Never hide employees, destroy documents, or provide false information. Doing so can result in criminal liability.
• Inform Employees of Their Rights: Employees may choose not to speak with ICE agents and can remain silent. If they are not detained, they are free to leave. If detained, request that ICE accommodate medical or personal needs and ask where the employees are being taken.
• Plan for Business Continuity: Raids can disrupt operations. Prepare in advance by cross-training key roles and establishing a relationship with a staffing agency if replacements become necessary.

Even after ICE leaves, the investigation may continue for months. Stay in contact with legal counsel, preserve records, and document the incident thoroughly.

REDUCING THE RISK OF VIOLATIONS

The best way to handle an I-9 audit or raid is to prepare in advance, before it ever happens. Here are practical steps every employer should take:

• Maintain Complete I-9 Records: Verify that all employees hired after November 6, 1986, have a fully completed Form I-9 on file. Cross-check with payroll data to ensure no records are missing.
• Complete I-9s On Time: Employees must fill out Section 1 by the end of their first day. Employers must complete Section 2 within three business days of the employee’s start date. Failure to adhere to these deadlines can result in a Notice of Substantive Violation (see above).
• Conduct Internal Audits: Review your I-9 files regularly. Legal counsel can guide you through proper corrections to avoid triggering new liability.
• Train Your HR Team: Ensure HR personnel understand how to complete, audit, and store I-9s, and how to identify invalid documents.
• Organize Your Records: Store I-9s separately from personnel files. Keep current and former employee forms labeled and secure. This organization allows for faster response during an audit and reduces the risk of accidental disclosure of sensitive personnel data.
• Follow Retention Rules: Keep each I-9 for three years after hire or one year after the termination, whichever is later. Properly discard expired forms to avoid unnecessary liability.
• Use the Most Current Form: Always use the latest version of Form I-9 when onboarding new hires. Even if completed correctly, using an outdated form can lead to technical violations.
• Create an Audit Response Plan: Designate a team to respond to an ICE visit, contact legal counsel, speak with agents, and document the inspection.
• Consider E-Verify: This government system verifies authorization through a federal database. It is not required for all employers, but may be beneficial depending on your industry and risk profile.
• Stay Informed: I-9 rules are subject to change. Monitor official updates and work with legal counsel to stay ahead of compliance trends.

FINAL THOUGHTS: COMPLIANCE NOW PREVENTS CRISIS LATER

Whether it is a routine audit or an unexpected raid, ICE enforcement actions can carry steep penalties, disrupt your business, and damage your reputation. But most violations are avoidable.

By investing in compliance now through training staff, organizing records, and preparing for enforcement, you give your business its best defense. To schedule a compliance review or discuss your I-9 practices, contact one of our employment attorneys at Critchfield, Critchfield & Johnston Ltd. Taking a few proactive steps today can help prevent a crisis tomorrow.

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