How Employers and Healthcare Providers Can Navigate Immigration Enforcement

EMPLOYER’S LEGAL DUTIES UNDER THE IRCA, AND DHS-ICE AUTHORITY TO ENFORCE IMMIGRATION LAWS

Under the IRCA, it is unlawful in the United States to hire, recruit, or continue to employ a person who is not in the country legally and not authorized to work (“an unauthorized alien,” as defined by law). An employer has a defense if it, in good faith, reviewed and accepted Form I-9 documentation that reasonably appeared to be genuine on its face.

The US Department of Homeland Security (DHS) has the authority to conduct worksite inspections and audits. ICE, the DHS component responsible for enforcing the IRCA, has the authority to appear at a worksite with a notice of inspection or subpoena, demanding the production of various documents within three days, including:

• Historical lists of workers
• Payroll and tax records
• Company ownership information
• Staffing vendor information
• I-9 forms
• Copies of identity and authorization documents presented by employees

During an audit, ICE may issue a “Notice of Suspect Documents” for workers believed to be unauthorized based on database checks, even if the Form I-9 was completed correctly. Employers must either contest the finding or terminate the workers, often with little time for resolution. ICE is rarely wrong about suspect documents, and confronting the worker often results in the worker not returning to work.

DHS may investigate employers, plant undercover agents within the workforce, and conduct raids with armed agents, presenting search and seizure warrants. They may seize documents, computers, and phones, and arrest unauthorized workers. The department may also prosecute employer owners and managers on charges such as harboring and trafficking unauthorized workers, mail and wire fraud, document fraud, and tax evasion. Criminal charges can result in significant fines and imprisonment.

ICE has the authority to arrest and detain most non-citizens, including those with arrest histories and certain long-term permanent residents. It can conduct workplace raids and other enforcement activities to effectuate these arrests. ICE must present a judicial warrant to enter nonpublic areas of a workplace. A judicial warrant is signed by a federal judge, not an immigration officer. The warrant must provide specific details, such as the name of the individual to be arrested, the location, and the reason for the arrest. Without a warrant, ICE is only allowed to be in public areas of the workplace.

According to a recent DHS memorandum, the department is availing itself of law enforcement components of the US Department of Justice (DOJ) – including the US Drug Enforcement Administration (DEA), the ATF, the US Marshals Service, and the Federal Bureau of Prisons (BOP) – to carry out “functions” of an immigration officer to enforce immigration law. Historically, only the US Marshals were tapped to assist when a migrant became a fugitive. Although it remains to be seen how these DOJ law enforcement resources will be directed, it is possible that DHS’s immigration enforcement capacity will be more far-reaching than under previous administrations.

POTENTIAL SANCTIONS AND PENALTIES

Employers are subject to sanctions for incorrectly completed I-9 forms, missing forms, or knowingly hiring unauthorized workers, which can range from $300 to $30,000 per worker, as well as debarment from federal contracts. Employers are allowed 10 days to correct technical errors, but certain substantive errors cannot be corrected to avoid penalties. ICE can also fine employers for failing to comply with technical requirements for electronic storage of completed forms.

Interfering with an ICE arrest warrant can also lead to criminal charges for obstructing justice. This can include fines and imprisonment, depending on the severity of the interference.

GENERAL TIPS FOR ALL EMPLOYERS

• Maintain and enforce a comprehensive, compliant immigration policy.
• Identify coordinators and designated points of contact in the event of any visit by ICE agents, including an ICE raid.
• Conduct annual self-audits of I-9 forms to identify and address any issues before enforcement actions occur. Note: An employer is required to accept a List A document, or a List B and C document, from employees. Accepting and keeping copies of too many documents is also an IRCA violation.
  • Hint: If an employee presents a document from all three lists, return them and ask them to either provide a List A document, or provide a List B and a List C document. Let the employee choose, then review the requisite and correct number of documents for the Form I-9 Verification.
• Ensure proper Form I-9 verification and storage, including in digital format. Designate and train individuals in I-9 verification and retention.
• Enroll in E-Verify to verify social security numbers and names and ensure compliance with the IRCA. E-Verify is a platinum standard protection for employers. But it is not a safe harbor. Employers can still be fined for I-9 violations.
• Use the Social Security Administration (SSA) website, if your organization is not enrolled in E-Verify, to confirm social security numbers match the employee’s name and identification.
• Comply with no-match letters from the SSA by presenting the letter to the employee and asking them to present correct and valid documentation. Check that new documentation matches the name using the SSA website.
• Identify and stop systematic improprieties in hiring practices.
• Pay employees and submit tax withholding payments correctly, using real and correct social security numbers.
• Educate staff on how to interact with ICE, DHS, or other law enforcement agents, including calling counsel and managing the situation calmly and professionally.

SPECIAL CONSIDERATIONS FOR HOSPITALS AND OTHER HEALTHCARE FACILITIES

In 2011 and 2021, ICE established a policy that generally prohibited engaging in enforcement actions at “sensitive locations,” such as healthcare facilities, schools, and religious institutions, unless exigent circumstances existed (namely, public safety threats, imminent risk of death, violence, physical harm, or destruction of evidence material to an ongoing investigation). On January 20, 2025, the Trump administration rescinded that policy, and ICE may again conduct enforcement actions in these locations. Enforcement actions may include interviews, arrests, searches, inspections, surveillance, and requests for protected health information (PHI). The Privacy Rule adopted under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) permits (but does not require) disclosure of PHI in accordance with a valid court order or court-ordered warrant or a subpoena or summons issued by a judicial officer.

Healthcare professionals may have state law or ethical obligations to consider the best interests of patients. Accordingly, healthcare workers should consider any state law or ethical responsibilities to protect patients’ health with their obligations to comply with federal law. For example, in a case where ICE presents a valid judicial warrant for the arrest of a patient, if that patient is in a life-threatening or severe state, the healthcare provider could explain this to ICE officers and request that ICE officials work with the healthcare provider to determine a safe course of action for the patient.

TIPS FOR HEALTHCARE FACILITIES

• Ensure staff members are familiar with the organization’s policies on patient confidentiality and the rights of both patients and healthcare providers.
• Comply with the law and be mindful of emerging state laws on this issue. California is advising healthcare providers not to document patients’ immigration status on bills and medical records and advising patients and providers that they do not have to assist federal agents in arrests. Florida and Texas, by contrast, require healthcare facilities that accept Medicaid to ask the immigration status of patients (although a patient may decline to answer) and tally the cost to taxpayers of providing care to immigrants living in the United States without authorization.
• Develop and train on protocols that outline the steps to be taken in the event of an ICE raid.
• Designate specific roles to appropriate staff members, such as who will act as the point of contact with ICE agents and who will interact with patient(s) in question.
• Healthcare facilities may post signage about patient rights, including that exam-room conversations are confidential and that privacy laws protect information in the medical record (including identifying information), and patients’ right to remain silent in the event of an ICE raid.
• Healthcare facilities that are HIPAA-covered entities must provide patients an opportunity to decline to be listed in a facility directory or otherwise restrict or prohibit use of PHI for facility directory purpose.

WHAT TO DO IF AN ICE AGENT VISITS, OR IF RAIDS OCCUR AT A HEALTHCARE FACILITY

• All staff members should remain calm and composed.
• Only the designated points of contact should interact with ICE agents. These individuals should be well-versed in the organization’s policies and the legal rights of patients and staff.
• Designated points of contact should have ICE agents identify themselves by name and badge number. While healthcare workers and organizations have no affirmative legal obligation to report undocumented immigrants to officials, healthcare workers must lawfully abide with providing information and access to facilities where a valid warrant is presented.
• Designated points of contact should politely request to see and review any warrants presented by ICE agents and ensure the warrants are valid and specific to the premises before permitting access to any private areas. For the warrant to be valid, it must be signed by a federal judge (a judge’s signature will indicate such).
  • Hint: If the warrant is a DHS Form I-200 or I-205 signed by an immigration officer, this is not a judicial warrant. In this case, the healthcare provider can advise the ICE agent that the warrant is not a valid judicial warrant and that the ICE agents may not enter any private areas – they must remain only in public areas.
• Points of contact should provide information or documents required by a valid warrant but need not provide information or records falling outside of the warrant to maintain patient confidentiality.
• After the ICE visit or raid, document the event by immediately identifying the names and badge numbers of ICE agents who were present, the time and duration of their presence, and any actions taken by the agents. Secure all patient records that may have been accessed during the event.
• Patient liaisons may reach out to all patients affected by the raid to inform them of what occurred and reassure them of their safety and the confidentiality of their records. Patient liaisons may also provide impacted patients and their families with information to immigration advocacy organizations and legal aid groups who can provide legal support, particularly if a patient is taken into immigration custody.

CONCLUSION

Employers and healthcare providers must remain vigilant and proactive in managing immigration compliance to avoid significant penalties and disruptions. By following these tips and working closely with experienced counsel, organizations can be in legal compliance, navigate the complexities of immigration control, and protect their businesses and managers.