U.S. Immigration and Customs Enforcement (ICE) aggressively executes its mission “to protect America from the cross-border crime and illegal immigration that threaten national security and public safety.” With both political parties campaigning on border security during the 2024 election cycle, this isn’t likely to change soon.
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. By targeting companies that employ individuals who are in noncompliance with the country’s immigration laws, ICE, the Department of Homeland Security (DHS), and other federal authorities can not only efficiently identify multiple individuals to prosecute all at once but can also prosecute these companies—and, in doing so, they can disrupt channels of illegal immigration into the U.S.
For companies that employ illegal immigrants, facing a transnational crime is a high-risk proposition. But, even for those who do not employ illegal immigrants, ICE investigations can still lead to penalties if agents uncover evidence of other immigration-related violations, such as forced labor, child exploitation, human trafficking, or financial fraud. This includes failure to maintain I-9 compliance, among other common issues. 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 help them achieve 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.
10 Key Facts About Facing an ICE Investigation in 2025
While ICE investigations are similar to 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 and law enforcement partners when necessary, and they may need to be prepared to defend against a bevy of allegations depending on the circumstances. With this in mind, here are 10 important facts employers need to know about facing an ICE investigation in 2025:
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. Those that do not have a dedicated I-9 compliance program need to put a program in place as soon as possible.
Not only does having an effective I-9 compliance program mitigate against 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 is undertaking good-faith efforts to maintain compliance, this can set the stage for a favorable outcome. Conversely, if an employer cannot produce documentation of I-9 compliance (or at least good faith efforts to maintain I-9 compliance), this can change the tone of the investigation entirely.
2. Employers Cannot Look the Other Way on Immigration Status
Ignorance is not a defense in federal immigration law compliance. This means employers cannot ignore workers’ immigration status. The Immigration Reform and Control Act requires employers to verify all job candidates' identity and employment eligibility. When employers lack adequate verification processes and procedures, this is a major red flag for transnational criminal organizations, leading 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. This is mandatory—substituting alternate verification procedures is not permitted (although employers may take additional verification steps if they feel 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 discrepancies between job candidates’ I-9 disclosures and immigration documents. Employers must actually review job candidates’ I-9 forms. 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, enforcement and removal operations officers look for evidence that employers are taking both steps to verify workers’ eligibility. If no such evidence is available, this usually leads to a presumption of non-compliance. Then, it is up to the employer to demonstrate why prosecution is unwarranted. This proves to be an uphill battle in many cases, further underscored by the importance of not only maintaining federal immigration law compliance but also maintaining thorough compliance documentation.
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 both fines and 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 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 Federal Agents (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. This includes making false representations about employees’ immigration status or immigration records, presenting falsified or forged I-9 forms, and other similar types of immigration-related misrepresentations.
- 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. This covers not only presenting false or forged I-9 forms (or other immigration documents), but also attempting to destroy communications or other records that serve as evidence of non-compliance.
- 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). This federal statute makes it a criminal offense to knowingly (or with willful ignorance) facilitate illegal immigration or harbor illegal immigrants. 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 must 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 have 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, and take any necessary legal action to protect the company.
Responding to a subpoena, in particular, requires an informed and cautious approach. Withholding responsive documents, providing false, forged, or misleading documents, and other attempts to interfere with ICE’s investigation when faced with a subpoena can lead to federal contempt or obstruction charges, regardless of whether the investigation is warranted.
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 (especially repeated ones) 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. In this scenario, it is imperative to engage highly experienced legal counsel as soon as possible, and company owners and executives must be prepared to work with their counsel to execute a defense strategy focused on protecting them to the fullest extent possible.
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) company mistakes is assumptions about what ICE agents will find. While homeland security 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.
What are “the right” decisions? The answer to this question will vary case by case. In some cases, it may be in the best interests of companies to fight ICE’s subpoenas and other requests for information. In others, a more cooperative approach may be warranted. In others, it may still make sense to focus on settlement and on working with ICE while coming into compliance and implementing a comprehensive federal immigration law compliance program that will effectively prevent violations going forward.
In all cases, making informed decisions in response to an ICE investigation starts with engaging experienced legal counsel. As discussed above, these high-risk matters can lead to substantial penalties against employers, their owners, and executives. While it is possible to resolve ICE investigations without formal charges in many cases, doing so requires a clear understanding of the law, the facts at hand, and the ability to work effectively with ICE to address its concerns while executing an effective defense.
