"Worksite enforcement operations are going to massively expand," according to a June 12, 2025, interview1 with Border Czar Tom Homan.
Commencing on June 8, 2025, the National Guard arrived in Los Angeles and Santa Ana, California, to guard federal personnel and buildings in connection with protests underway in the aftermath of arrests by U.S. Immigration and Customs Enforcement (ICE) agents of persons believed to be unlawfully present in the United States. This comes on the heels of ICE conducting other large raids, including one at a construction site near Florida State University's campus, and other ongoing enforcement activities.
What Does This Mean for Employers?
Across the country, ICE has been actively issuing Notices of Inspections (NOI) to obtain I-9 forms and other key records regarding the businesses and the persons they employ at construction companies, factories, hospitality locations such as hotels and restaurants, and other businesses such as agricultural businesses. However, acting at the instruction of the Trump administration, on June 12 a senior ICE official instituted a "pause" and advised ICE agents to "hold on all work site enforcement investigations/operations on agriculture (including aquaculture and meat packing plants), restaurants and operating hotels.2 "While the political actors may continue to alter the priorities of enforcement, as an employer you do not want to be caught flat-footed when you receive an NOI. If your business receives one of these NOI requests, or if you want to be better prepared on the issue, what should you do next?
Notify Legal Counsel, Gather the Records, and Produce to ICE
An NOI permits ICE to audit the company's paperwork to see if the supplied forms comply with federal employment eligibility verification laws. The employer only has three business days to respond, and ICE may only permit (or it may not permit) a short extension if the employer cannot meet the three-day deadline. The employer should seek to provide an organized response with the records on hand. Here's what a company should do after receiving an NOI:
- Inform Legal, HR, Compliance, and top management right away upon receipt of an NOI. Legal counsel can guide the response, ensure documents are properly organized and submitted, and help identify and mitigate any potential issues.
- Review each I-9 form for completeness and accuracy. While you cannot alter, destroy, or omit original I-9s in the business's production to ICE, you can separately correct errors discovered and date and sign the corrections, but you should do so only at the direction of counsel. You can also prepare a separate log of identified errors so the business can separately take corrective steps after the submission to ICE at the direction of legal counsel.
- Be sure not to alter, destroy, or omit any records requested in the NOI. Appreciate that service of the NOI is often step one in any investigation — including a criminal investigation — of the company itself for compliance with federal immigration and criminal statutes.
- If you use a professional employer organization (PEO), a staffing company, or other third-party vendor to collect, verify, and maintain I-9 documentation, ensure that you know the process, procedure, and timing required to request copies of those documents from the PEO. Even if it is clear from the contract that the PEO personnel are not your business's employees, using a PEO can create complicated issues for responding to an NOI. Delays on account of a third party might not later constitute a good reason for failing to meet the deadline to respond to the NOI. Even before an employer receives an NOI, it should consider whether it makes sense for a third-party PEO to handle the company's I-9 compliance, because that reliance does not eliminate the employer's obligations to comply with the law in the short timeframe provided by law. At a minimum, consider maintaining with the PEO company joint access to the digital location where your business's I-9s are stored.
Issue a Litigation Hold and Preserve All Relevant Documents
Treat the NOI as the commencement of an investigation by ICE. Therefore, issue a litigation hold (and direct one to the PEO, if you use one). Do not destroy, alter, or backdate any records. Ensure that your business is retaining key records, emails, and texts to assist the business in understanding the issues and defending the business if needed.
Prepare for Follow-up Action by ICE
After the audit, ICE may come and search your business pursuant to a federal search warrant and/or may take additional steps such as issuing a Notice of Suspect Documents, Notice of Technical or Procedural Failures, or other administrative steps. Be prepared to respond within the designated time frames with assistance from legal counsel.
Get Your Immigration House in Order
Take a moment to consider your hiring practices and how best to protect your business. ICE often returns regardless of the audit's outcome, so take advantage of the NOI to get your immigration house in order:
- Review the I-9s, payroll records, E-verify records, personnel files, training materials, and policies in place so you know what ICE is learning in its audit of your documents.
- Consider conducting your own internal audit (even now, before receipt of an NOI).
- Retrain HR personnel on the proper way to ensure compliance with U.S. employment laws.
- Consider implementing a compliant electronic I-9 software system, understanding that some systems are not legally compliant.
- Consider signing up for E-Verify.
- Regularly monitor decisions by the Department of Homeland Security that revoke the status and work authorization of persons from certain countries.
If a work authorization expires or is revoked, the employee loses eligibility to work in the United States. For example, on June 12, 2025, the Department of Homeland Security announced that it was sending emails to all Cubans, Haitians, Nicaraguans, and Venezuelans, who were granted parole into the United States and had received work authorizations, ordering them to immediately leave the country.3 Employers who have employees in this category need to determine if there is any other way for such persons to remain employed lawfully or whether they must terminate their employment. Conversely, deciding that you just will not hire "foreigners" is a form of national origin discrimination and also is a violation of law to be avoided. If you suspect that your business has employed or is employing a person ineligible to work in the United States, consult with legal counsel to discuss how to handle that person's employment and whether to take the unusual, voluntary step of disclosing the situation to ICE or the Department of Justice.
For additional information, see the following Foley publications:
- How Employers Can Prepare for Immigration Audits and Visits
- Top Tips for Companies to Prepare for an Immigration Visit
- Vigorous Immigration Law Enforcement Is Here: I-9 Inspections, Site Visits, and More
Footnotes
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
