U.S. Immigration and Customs Enforcement (ICE) together with the Department of Homeland Security (DHS) aggressively execute its mission “to protect America from the cross-border crime and illegal immigration that threaten national security and public safety.” One of the primary ways that ICE agents target illegal immigration is by targeting companies suspected of employing individuals who are in the United States illegally.

For companies that employ illegal immigrants, facing an ICE investigation is a high-risk proposition. But, even for those that do not employ illegal immigrants, ICE investigations can still lead to penalties if agents uncover evidence of other immigration-related violations (i.e., failure to maintain I-9 compliance). As a result, employers need to take all U.S. Immigration and Customs Enforcement inquiries seriously, and they need to rely on the representation of an experienced ICE investigation lawyer who can guide their inquiries toward favorable outcomes.

“ICE investigations present significant risks for employers of all sizes. If an employer is unable to affirmatively demonstrate compliance with all applicable federal immigration laws and regulations, this can lead to either civil or criminal prosecution depending on the circumstances involved.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

While ICE investigations are similar to other types of corporate federal investigations in certain respects, there are also unique aspects to dealing with U.S. Immigration and Customs Enforcement. Employers need to be prepared to deal with ICE when necessary, and they need to be prepared to defend against a bevy of allegations by all means available. With this in mind, here are 10 important facts employers need to know about facing an ICE investigation in 2024:

1. Employers Need to Prioritize Federal Immigration Compliance

First and foremost, employers need to prioritize federal immigration compliance. Employers that have I-9 compliance programs should review their programs to ensure that they are up-to-date and functioning effectively, and those that do not have a dedicated I-9 compliance program need to put a program in place ASAP.

Not only does having an effective I-9 compliance program mitigate the risk of inadvertently violating federal immigration laws, but it can also significantly impact the ICE investigation process. When ICE agents see that a company has a custom-tailored I-9 compliance program and that the company is taking good-faith efforts to maintain compliance, this can change the tone of the investigation entirely.

2. Employers Cannot Look the Other Way on Immigration Status

When it comes to federal immigration law compliance, ignorance is not a defense. In other words, employers cannot look the other way when it comes to workers’ immigration status. The Immigration Reform and Control Act requires employers to verify the identity and employment eligibility of all job candidates. When employers lack adequate verification processes and procedures, this serves as a major red flag for ICE agents, and it leads to additional scrutiny in virtually all cases.

To comply with the Immigration Reform and Control Act’s verification requirements, employers must use ICE’s Employment Eligibility Verification Form, also known as Form I-9, in accordance with the ICE's employment eligibility verification regulations. This is mandatory—alternative document examination procedures or substitution of alternate verification procedures is not permitted (although employers may take additional verification steps if they feel that this is necessary to avoid unlawful employment).

3. Employers Cannot Simply Accept Questionable Immigration Documents

Along with having job candidates fill out the appropriate portions of Form I-9, employers must also “examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and to relate to the employee and record the document information on the Form I-9.” This has two important implications.

First, employers cannot overlook or ignore any discrepancies between job candidates’ I-9 disclosures and their immigration documents. Employers must review job candidates’ I-9 forms; and, if the information on an I-9 is inconsistent with the information contained in a job candidate’s immigration documents, employers cannot simply assume this is a mistake. Instead, they must investigate and make an informed decision regarding the job candidate’s immigration status.

Second, employers cannot simply accept questionable immigration documents. If a job candidate’s documents appear to be forged or altered, this requires additional scrutiny.

During ICE investigations, agents look for evidence that employers are taking both of these steps to verify workers’ eligibility. If no such evidence is available, this will usually lead to a presumption of non-compliance, and then will be up to the employer to demonstrate why prosecution is unwarranted.

4. Immigration Violations Can Lead to Civil or Criminal Allegations

Depending on the evidence ICE agents uncover during an investigation, immigration violations can lead to civil or criminal allegations. In civil cases involving apparent unintentional violations, companies can face steep fines and other administrative consequences. In criminal cases targeting companies accused of intentionally hiring illegal immigrants, companies can face substantial fines as well, and company leaders can potentially face federal imprisonment.

5. Mistakes During ICE Investigations Can Also Lead to Charges

In addition to federal immigration law violations, mistakes made during ICE investigations can also lead to charges against companies and their executives. For example, when facing federal scrutiny, companies and their executives should rely on an experienced ICE investigation attorney to help them avoid prosecution for offenses such as:

• Lying to a Federal Agent (18 U.S.C. Section 1001) – Making false statements to federal agents during an ICE investigation can lead to prosecution under 18 U.S.C. Section 1001. Under this federal law, falsifying, concealing, or covering up any material fact can lead to statutory fines and up to five years of federal imprisonment.
• Obstruction of Justice (18 U.S.C. Section 1519) – Falsifying, concealing, covering up, or destroying corporate records during an ICE investigation is also a federal criminal offense. Under 18 U.S.C. Section 1519, personnel accused of these acts can face statutory fines and up to 20 years behind bars.
• Harboring Illegal Immigrants (8 U.S.C. Section 1324) – Companies and individuals that attempt to protect illegal immigrants from ICE can face prosecution under 8 U.S.C. Section 1324 (in addition to facing prosecution under this statute for other immigration-related offenses). Violations of Section 1324 carry statutory fines and up to five years of incarceration.

6. Voluntarily Providing Records Too Early Can Be Dangerous

For companies that comply, voluntarily providing records to ICE that demonstrate compliance can be a highly effective defense strategy. However, companies need to be extremely careful to avoid voluntarily providing records to ICE too early.

The decision to voluntarily provide records to ICE needs to be based on facts, not assumptions. If company leaders think their I-9 compliance program is effective when this is not the case, making a voluntary disclosure could amount to confessing. As a result, before providing any records to ICE, companies should work with their outside counsel to thoroughly evaluate their compliance efforts and assess whether their personnel has committed any statutory or regulatory violations.

7. ICE Search Warrants and Subpoenas Require an Immediate Response

ICE agents rely heavily on search warrants and subpoenas when targeting companies suspected of federal immigration law violations. When served with a search warrant or subpoena, companies must respond immediately. This also requires informed decision-making based on the advice of outside counsel. Upon being served, companies should promptly engage an ICE investigation lawyer to examine the search warrant or subpoena, communicate with ICE agents on their behalf, and take any necessary legal action to protect the company.

8. An Effective Immigration Law Compliance Program Can Carry the Day

For companies that have undertaken good-faith efforts to comply with the Immigration Reform and Control Act and all other pertinent federal laws and regulations, showing ICE that this is the case can carry the day. This, of course, is subject to the caveat discussed above that companies must be certain they comply with voluntarily providing information about their compliance programs to ICE agents.

Even if a company’s human resources personnel have made inadvertent mistakes, demonstrating good-faith compliance efforts can still be an effective defense strategy in appropriate cases. But, ICE agents will also expect to see that the company has adequate procedures in place to identify unintentional mistakes and that the company has taken appropriate remedial measures in response. If inadvertent errors (and especially repeated inadvertent errors) went unnoticed, this will suggest to ICE that the company’s compliance program is inadequate.

9. Companies that Have Knowingly Employed Illegal Immigrants Need To Be Careful

For those companies that have knowingly employed illegal immigrants, defending against an ICE investigation requires a very different approach. Criminal prosecution is a very real possibility in these cases, and companies (and their executives) must be prepared to defend themselves by all means available.

10. Successfully Defending Against an ICE Investigation Requires an Informed and Strategic Approach

Ultimately, regardless of the circumstances involved, successfully defending against an ICE investigation requires an informed and strategic approach. One of the biggest (and most common) mistakes companies to make is making assumptions about what ICE agents are going to find. While ICE investigations can be risky, companies and individuals can defend themselves effectively with the right approach. The key is making the right decisions based on the advice of an experienced ICE investigation attorney.