Client Updates
Recently, we have seen a heightened focus on immigration
enforcement. Guidance and internal orders within the Department of
Justice (DOJ) signal that it may increasingly utilize the
immigration laws to prosecute (criminally and civilly) companies,
firms, and executives that employ undocumented workers.
Studies suggest the employment of such workers is prevalent across
many industries, and as such, employers need to be aware of the
potential risks. The penalties can be severe. A civil fine for one
paperwork violation can cost an employer thousands of dollars.
Criminal penalties can include prison time, and exposure is not
limited to the company or firm. Executives who are aware of and
facilitate the hiring of undocumented workers may themselves face
criminal liability.
Companies need to be prepared for raids at workplaces, as early
missteps in investigations like these can impact the defense of the
company and executives down the road. For example, if an employee
makes a statement to an investigator during a raid, that statement
is admissible against the company, even if it is not authorized by
the company. There are important steps that should be taken before
a raid occurs to prevent harm.
Baker Botts has created a multi-disciplinary team to help mitigate these
risks before an investigation and provide defense and counsel
during such an investigation.
Workplace Enforcement under Prior Administrations
Workplace immigration enforcement has existed across multiple administrations in various forms. After creating ICE as a law enforcement agency within the Department of Homeland Security (DHS) in 2003, the Bush administration primarily relied on physical workplace raids. The Obama administration focused on less visible, but nonetheless impactful, audits of employer hiring processes, which yielded significant fines.1 The first Trump administration returned to conducting more visible workplace raids, including record-breaking simultaneous raids in seven Mississippi cities in August 2019 that resulted in 680 arrests and criminal charges against individuals who were managers, supervisors, or human resources personnel.2 The Biden administration restricted workplace raids, directing immigration agencies to prioritize enforcement efforts on "unscrupulous employers who exploit the vulnerability of undocumented workers."3
The Current Administration
The flurry of executive orders4 and actions taken by
federal agencies pursuant to those orders in these early days of
the second Trump administration reflect a heightened focus on
immigration matters. Directives from DHS have eliminated previous
restrictions on areas in which ICE—and now also other federal
agencies, including the Drug Enforcement Agency, Bureau of Alcohol
Tobacco and Firearms, and U.S. Marshals Service—can conduct
enforcement activities.5 Attorney General Pam Bondi
issued a memo that directs the DOJ to "use all
available criminal statutes to combat the flood of illegal
immigration" given the "historic threats from widespread
illegal immigration." Prosecutors should pursue "the most
serious, readily provable offense."
AG Bondi's memo imposes reporting requirements on local U.S.
Attorney's Offices concerning immigration-related criminal
charges. It requires local Offices to disclose to Washington any
declined prosecutions of immigration-related offenses as an Urgent
Report under the Justice Manual, which have typically been reserved
for "significant investigations and
litigation."6 The memo also mandates that local
Offices submit quarterly reports to Washington with statistics on
immigration-related cases referred to the local Office, pending
immigration-related investigations and prosecutions,
immigration-related convictions, and the resulting sentences and
removals.
Penalties
Civil and criminal penalties for immigration violations are steep. With recent adjustments for inflation, employers can face civil fines ranging from $288 to $2,861 per paperwork violation.7 For a first-time hiring violation,8 employers can face civil fines of $716 to $5,724 per violation. On the criminal side, the statute typically used to prosecute employers for immigration-related offenses carries steep penalties. Section 1324 of the Immigration Nationality Act (INA) imposes up to five years' imprisonment and fines for any person who "conceals, harbors, or shields" undocumented workers from detection, "encourages or induces" an undocumented worker to enter and live in the United States, or hires at least ten undocumented workers with actual knowledge of their status.9 Under Section 1324a, which criminalizes a "pattern or practice" of employers who knowingly "hire . . . recruit or refer for a fee" undocumented workers, employers can be fined up to $3,000 for each undocumented worker they employ and company personnel found to have been involved in the hiring or recruiting for a fee can be imprisoned for up to six months.10 Employers have also been prosecuted for document fraud (18 U.S.C. § 1546) or identity theft (18 U.S.C. § 1028), which are also felony offenses.
AG Bondi's memo also indicates that the DOJ will pursue charges against individuals and employers that obstruct federal immigration enforcement efforts. Companies that fail to cooperate with audits or investigations could face charges under 18 U.S.C. 371 (prohibiting any "conspiracy to defraud" the federal government). Under prior enforcement regimes, obstruction charges might have been reserved for companies that actively hindered or interfered with enforcement efforts.
Given this administration's more comprehensive strategy, it is critical that employers prepare for greater scrutiny of employee work authorization records and more frequent workplace raids.
I-9 Audits and FDNS Site Visits
Under the INA, employers must verify that their workers are
authorized to work in the United States.11 Federal
regulations designate Employment Eligibility Verification Forms
(Form I-9) as the method for employer verification. ICE performs
audits to review work authorizations and to confirm the accuracy
and completeness of an employer's paperwork. ICE initiates
audits with a Notice of Inspection (NOI) which notifies an employer
that they must produce employee I-9 forms and supporting
documentation within three business days of receipt. ICE may come
to a workplace with no prior notice to issue a NOI.
Separately, the Fraud Detection and National Security unit of the
United States Citizenship and Immigration Services can conduct
announced or unannounced workplace inspections to ensure employer
compliance with the terms of employment of employer-sponsored visas
like H-1B or L-1.
Employers should anticipate that these audits and site visits will
increasingly be used as precursors to raids. Companies with
histories of noncompliance with documentation requirements may be
prioritized for enforcement actions.
Workplace Raids
Employers should be prepared in case ICE agents, possibly accompanied by local law enforcement or agents from other federal agencies, appear at their business to conduct a raid. Agents may seek to search the premises pursuant to a warrant or demand to speak with particular employees.
ICE may access any public areas of the business that a member of the public would be allowed to access. However, private areas of a business are not accessible to ICE agents unless they have a judicial warrant that specifically authorizes access, or if the employer provides consent. Critically, ICE may not have a judicial warrant when it conducts a raid. ICE agents may carry an administrative warrant, a document that gives the appearance of a warrant, but that does not impose any legal duty to comply. Administrative warrants may be labeled as a "warrant"—and therefore may be difficult for a layperson to distinguish from a judicial warrant—but are typically issued by DHS instead of by a court. With an administrative warrant, ICE may only access private areas of the premises if the employer consents.
Preparing for a Raid
Given the emphasis on immigration enforcement, site visits and raids require extensive preparation. Employers should:
- Establish written protocols. Protocols should designate a primary point of contact to handle ICE interactions (typically, an employee in Human Resources and/or legal counsel) and establish a procedure for immediately alerting management and outside legal counsel. Protocols should also provide guidance for employee interactions with agents.
- Provide employee training and education. Primary points of contact—and alternates—should be trained in how to facilitate a site visit and should be familiar with immigration compliance. Points of contact, and other employees most likely to first encounter agents during a visit, should understand the distinctions between judicial and administrative warrants, and rights of access to public and private spaces. All employees should be trained to remain calm and should be educated on their rights during site visits. As in all cases, employees have the right to remain silent and to request an attorney, and the right to refuse to sign any documents without an attorney's advice. Employers should consider providing "Know Your Rights" cards to employees, which immigration advocacy groups make available in multiple languages.
- Conduct routine internal documentation review. Employers should regularly conduct internal audits of I-9 documentation, and any other relevant immigration documentation, and ensure that documents are organized and readily accessible. Specifically, employers should store I-9 documentation, whether digitally or in hard copy, in a separate place from all other personnel files to ensure the I-9 audit remains streamlined and is not complicated (and potentially expanded) as the result of commingled personnel files.
Takeaways
- Companies who employ undocumented workers or fail to comply with documentation requirements should immediately consult with legal counsel as they may face severe consequences.
- Mandatory reporting by local U.S. Attorney's Offices to Washington may lead to more criminal investigations into employers of suspected immigration violations.
- Prosecutors are poised to pursue the most serious criminal charges available. Charging decisions and decisions by a local Office against pursuing immigration-related charges will be reviewed by Washington.
- Preparation, routine maintenance of documents, and the creation of internal policies and guidelines are key to minimizing the likelihood of a workplace raid.
With proper preparation, including internal protocols and guidelines, employers can mitigate their risk of exposure in connection with immigration-related violations in the workplace. We will continue to monitor developments and provide updates as more information becomes available.
*Jennifer Berger, a law clerk at Baker Botts, assisted in the preparation of this article.
Footnotes
1. Immigration: Cracking Down on Employers Hiring Undocumented Workers, WHITE HOUSE, https:// obamawhitehouse.archives.gov/issues/immigration/strengthening-enforcement (last visited Mar. 4, 2025) (highlighting audits of over 8,900 employers suspected of hiring unauthorized migrants and impositions of over $100 million in civil sanctions against employers).
2. Press Release, U.S. Att'y's Off., S. Dist. of
Miss., Managers, Supervisors, and Human Resource Personnel
Indicted for Immigration Crimes and Other Federal Crimes Stemming
from Largest Single-State Worksite
Enforcement Action in Nation's History (Aug. 6, 2020), https://www.justice.gov/usao-sdms/pr/managers-supervisors-and-human-resource-personnel-indicted-immigration-crimes-and-other.
3. Policy Statement 065-06, U.S. Dept. of Homeland Sec., Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual (Oct. 12, 2021), https://www.dhs.gov/sites/default/files/publications/memo_from_secretary_mayorkas_on_worksite_enforcement.pdf.
4. Among others, executive orders have declared a national emergency at the border, expanded enforcement priorities by broadening the categories of removable aliens, and have revoked federal funding for "sanctuary" jurisdictions.
5. U.S. Dept. of Homeland Security, Statement from a DHS Spokesperson on Directives Expanding Law Enforcement and Ending the Abuse of Humanitarian Parole (Jan. 21, 2025), https://www.dhs.gov/news/2025/01/21/statement-dhs-spokesperson-directives-expanding-law-enforcement-and-ending-abuse.
6. U.S. Dept. of Justice, Justice Manual § 1-13.000 et seq., https://www.justice.gov/jm/jm-1-13000-urgent-reports#1-13.130.
7. 8 C.F.R. § 274a.10(b)(2).
8. 8 CFR 274a.10(b)(1)(ii)(A)
9. 8 U.S.C. §§ 1324(a)(1)(B)(ii), (a)(3)(A).
10. 8 U.S.C. § 1324a(f)(1).
11. 8 U.S.C. § 1324a(b).
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.
